morning honors my name is patrick mcnally and i represent the appellant j levy in this matter and this case really comes down to one issue and it is it's here before the court upon an appeal of denial of mr leeson twenty two fifty five motion to vacate his conviction i would like to start by first reading specifically from the transcript where trial counsel testified during the evidentiary hearing trial counsel was asked if mr levy had been given the correct advice about whether he would be deported upon entering a plea of guilty if he knew that he would be deported pun a plea of guilty to the indicted charge would you trial counsel taking the chance of going to trial comes up to you from the hill versus locker but delia and then eventually to court for a decision about what is the standard for prejudice that a person must show in order to vacate their conviction there is no question all the parties have conceded the report and recommendation by the master judge concluded and the district court adopted the findings of fact by the magistrate judge that trial counsel in this case gave mrs vyse to mr lee mr lee was charged in single count indictment with possession of ecstasy for resale mr lee entered a guilty plea based upon trial counsel devise that he would not be deported that he would not be deported trial counsel conceded during the evidence you're hearing i didn't realize this was you're going to say something i don't mean to interrupt but if i make because you're getting right to the heart of this whole case and that is what standard is applied to determine whether there's prejudice the district court judge magistrate judge ruled that the case should be the conviction should be vacated and he would be set for trial it's said in some of the cases that i've cited in my brief he was going to roll the dice unless he would unless his counsel was able to then get creative and try to come up with a different type of negotiation based upon the information that he would be deported if he pled to the indictment i mean the whole basis of this negotiations and the acceptance of this plea by mr lee was because he believed he was not going to be deployed in the prejudicing corey are we allowed to consider how much evidence there is against him yes i think that's  a collateral or color i'm sorry i'm stumbling my words but i think that is something that can be considered but if you look at the third other words it's not enough that the individual comes up and says boy if i had known about this deportation point i would have gone to trial you can't do that by itself is not enough so prejudice absolutely agree what the courts have looked at is we don't just focus on which you have been convicted and therefore be in the spot you're in right now or did you get some benefit for instance lesser time by the plea bargain because of acceptance of responsibility on the guideline three eat the court also look and need to look at what do you really getting from this plea bargain and here mr lee gets nothing and it was testified at the trial and is looked at in various other cases from the fourth circuit the third circus which are on page thirty eight of my brief they looked at wait a second we've got to look at the whole picture here not just would have been convicted of going to trial or is it likely from objective standard but did he get anything you usually get a lot of downward departure and he did but it really got him nothing because a downward departure just means he's going to be deported one year sooner than he would have gone to trial longer than he might have been otherwise even though are in prison if he'd gone to trial he might have won and he might have glaucoma i said i'm sorry if nobody seems to question that there was a ton of evidence here so we can look at that but but the problem that i have in your saying well the real issue is what did he get from the plea bargain he did give a downward to to some extent which meant that he wasn't in prison as long as he might have otherwise been but just even by even there he being in prison for some period of time he's postponing his deportation which appears to be pretty much a given so what should he have gotten what else could he have gotten from the plea bargain well that's exactly what the deal you go to your honor in the in the plea if his lawyer had been operating with correct information that if we enter into this plea agreement you will be deported it's very clear from the record mr lee would not have accepted the plea bargain ok but i discount but his counsel could have gone and then creatively tried to work with the disc with the assist attorney to come up with a different type of plea bargain that would not have result in him being deported and that your honor is exactly what do you wrote in in the cases where withholding have to have any kind of like d of there's an enormous amount of speculation that you're suggesting is part of this that maybe it's a sort of you know if we had some ham we could have a ham sandwich if we had some bread here to the deportation doesn't look very iffy so what would have been the ammunition that his counsel could have utilized to get a deal that that prevented the deportation or didn't result in deportation in looking at the fourth circuit case of actions and also the third circuit court case of four reseal they said that what you look at is the ties the individual has to community in trying to negotiate a different type of settlement you look at the fact that mr lee came here when he's thirteen years of age he's legally circuit says you don't need anything all you need is the say so that you would have gone to trial and you already admitted we require more than that but i think the third court case though in or reseal goes a little bit further and says we look at also what are the things that the person will lose if they take this plea bargain and they looked at the fact that some of these cases here in fact they said that a person may very well go to trial facing a ten year minimum sentence and that decision would be reasonable given everything they're going to lose if they accept the plea bargain or deported right that just goes to the calculation of how much they prefer this country to the country to which they'd be deported but i asked you at the outset that that's not the only question and perhaps that's what the third eleventh and ninth said all they care about is that the person gets on the stand and said boy if i had known this i would have gone to trial i don't care how many years i would have faced but i that's the reason i asked you the question and you said it's not enough that the individual says because i'd like this country so much i'll risk anything to stay here you have to look at the evidence to figure out if there's any chance reasonable chance they avoid getting convicted i would not and i was responding to your honor's question that if all they said is i would have gone to trial rather than take the plea bargain for no one is going to be deported i think what i was trying to say was you also have to look at what are they going to lose for instance if it's a fellow who just came over the border so your position actually is you're the answer is different your position is who cares what the evidence is the evidence doesn't matter what matters is how much the person would prefer to stay here rather than there and that  ties actually here and i think i'm not completely excluding what is the evidence i think that's one factor of many factors to look at there are many factors to look at as to whether this decision to accept the plea agreement is reasonable or rational or not one of the would be what is the evidence all right it's likely i'll be deported if there is a good chance i could be found guilty but as mr fitzgerald said you never know when you go to trial what may happen and you also have to factor in there not only the evidence that the government has but also what are the individual's real ties to this community like mr li has two businesses that he owns his parents his elderly parents are citizens here his sister resides here he's been here he's now forty five years old came and thirteen's been what tell me isn't that mean there's no prejudice no that does not mean across the board there's no prejudice that's just one factor to consider about many others about whether you would take a chance and i don't think anybody can ever say there's no chance you won't be acquitted or found guilty of a lesser charge why use the word reasonable ok it's one factor about many they need to be considered and i think that's a way of reconciling all of these different opinions out there from the ones that say all we've got to do is have a person say i would not have accepted the plea agreement if i had been given company to advise other one say well let's look at the evidence that they have in the case of the most important to kill it obviously tells you to look at the evidence that would seem to me to be the end of the story well and he'll also says your prejudice is he'll also says though that the second prong part of it is but for the standard that is would you have gone to trial but for your lawyers miss advice and then they look at is it a reasonable decision to go to trial i agree but they start off with with the  on both problem you do have to show that i would have gone to trial and there would've been a reasonable chance of prevailing without a reasonable chance prevailing that this that the decision not to accept the plea bargain was reasonable that that again that goes to what i'm talking about here it's not that i've got to show i would prevail but that the decision not to accept the plea was reasonable rational and you take all the factors into consideration not just whether i would have won or not i hope i could so that's what i'm getting he's not happy about it your honor he's in custody like to be home he'd like to be running his restaurants you'd like to be the thought of that before you got involved in this but i know that that's that's an argument i have to face all the time in negotiating the port if you wanted to be immediately right correct in negotiations and i'm reading directly from the big deal you decision in form consideration of possible deportations can only benefit the state a non citizen defendant during plea bargain process by bringing deportation consequences into the process the defense and the prosecutor may very well may well be able to reach agreements that better satisfy the interest of both parties looking at the reasons why mr lee would not want to leave this country why he would benefit other people like his parents to be here in this country  and being aware that it would automatically trigger his removal if he accepted this plea agreement his lawyer operated during this critical part of the process the negotiations without that without the right knowledge of the law and that's what they here in some we've long recognizing negotiations a plea bargain is a critical phase of litigation for purposes of the six the moment right to effective assistance of counsel mr lee's lawyer when a negotiated with him he never answered the question would he rather be in jail it is if it meant that he would not be deported at the end of it yes does that mean he would take a ten year sentence and not be deported yes you're wrong and that exactly is what the deal you says and some of the other cases have said that a person may very well risk a ten year mandatory minimum sentence and then then be deported there's a lot that calls him to want to stay here and his fact that he answered yes to your question evidence is that he wants to stay here for reasons family reasons and those are those cases are really saying he'd rather stay in jail the rest of his life here rather than be deported i don't know if i want to go there for your honor but ok so there is a difference there probably are degrees to answering the question but five ten years as one case from the fourth circuit says an individual may very well want to stay a decade in prison then have multiple decades of being banished from this country good morning may it please the court my name is kevin whitmore and i represent the united states what's important is that this court has already resolved this issue very clearly in two cases  we have pillar versus united states in february of two thousand and twelve that this court decided in laid out the standard for dress in these type cases similarly you have had it who were that was decided in june of two thousand and twelve no more than three months later both providing guidance to litigants as a release to these type issues and this is what this court stated that the test for prejudice in the government would concede that the attorney performance was deficient but the test for prejudice is an objective test is not subjective a was we turn to the individual defended that would be a subjective test an objective test is looking at things such as evidence as it relates to the outcome whether or not there is a benefit whether or not it was rational under the circumstances whether or not there were going to be a different outcome at the end of the day is it rational just because a person knows that they want to be convicted anyway that they would go to trial and as this court stated we look at the evidence and so let's look at the evidence in this case the defendant was set up where there was a controlled delivery in which the police clerk is not properly fifteen peels from him defense is that passed out and asked to see two friends at party which is not a defense that's also said as for the element of distribution it would not be rational under the circumstances for this defendant to not been here for a long time he's taxpaying citizen he said he has businesses family ties and he's done some dumb criminal activity what are the is there any substantial likelihood here that he had he gone to trial deportation is a matter and there's this court stated that when defendant defend his engage in criminal activity they always compromise their families whether a person is been sent to prison for twenty years thirty years life the family remind me if the plea deal isn't done he now gets to go to trial what's the outer range sentence he could get you say well the longest sentence that's within the range of likely ok as it is a twenty year maximum statutory maximum that's not what we know you're on at that particular time he was facing twenty four to thirty months of imprisonment that was the guideline or that was the guideline range he received a below two to three years and maybe you could have an upward variance so if he gets what he wants he's got the risk of what three to four years that's that's correct  position is and i know this gets back to your objective subjective point but it's truly sincere the person would just rather take this one in one hundred shot of winning knowing full well the odds are high you'll be in prison for three to four years i don't mind that too much because you really don't want to leave the country anyway even if it means being in prison why is that objectively and reasonable if one decides to believe that the person really would prefer to stay here even for that one to three percent chance your honor that the best way i can answer that question is going back to this court's decision in pilling that defendant was in the same situation going back to this court decision we we were rejected there  assume because the there was so little evidence that could support the defendant that is correct your honor i mean we have other someone saying i'd like the country enough i'd rather be here in prison than i would be free in the country in the best way i can answer that your honor respectfully that would be irrational that would not be a rational decision in this is what this court is saying is that the decision to plead guilty or not guilty must be rational on the the circumstances defendants may be willing to risk a great deal but would it be rational does it makes this is something that this court all to be considerably and again are we going to set up a standard where we decide who we testify that he thought he had an agreement with the government that is the united states attorney's office that his client would not be deported the united states attorney's office it has no control over our homeland security and could the trial judge waive deportation is to my knowledge no your honor i mean that is that is outside of that but the government could lower the charge that happens all the time and plea bar saying that the government would have to that the government would have to lower the char says question was is it possible if the plea deal isn't done we go back to where you were before it's possible that part of the plea agreement is to maybe the evidence is we maybe there are other deficiencies in the case we have a confession we have a control by now we have to take a deal that says lower the charge i'll take four to five years in prison in connection plea just don't deport me at the end that's how can you be happy with that he's not hurting anybody for three to four years probably even take four to five you're on and the reason mister apologia just referred to his attorney took the deal that was offered that was the deal that was in this case any any facts outside of that this court would be speculating we would be speculating the deal was that he would plead guilty typically in a case of this magnitude when you think of distribution of drugs typically it's a felony offense this is the mansion or and it's in the record that he had been dealing with this individual for over ten years in fact the court said during this period of time he was responsible for over three hundred s the c p o was a he admitted that he threw parties and provided asked to see two friens i mean it is a controlled substance is banned for reason there is no reason to minimize the seriousness of this case because there's because this kind of case juergen all of our hearts at the same time defendants every day in this country make a decision that will affect their lives and sometime it is factor in their lives in terms of compromise in their families and again and i don't think we should be used apologize this court on two separate occasions of have applied an objective standard not only that you know on or into district court cases of looking at the cases that this court has all have already decided applied it in united states versus sheen no more than six months after i had it was decided to apply and this court standard made the decision that it was not a realistic chains this court polluted that he denied overcome the burden for prejudice and keep in mind the supreme court has stated in strickland that that the prejudice of prong is never an easy task  supreme court has observed that often it is quite difficult for partition those who have acknowledged their guilt to set us by strictly prejudice a problem we have united state versus a boob which is another district court case again following this court's instructions in pillar in inherited in that particular case they found that the evidence was weak against the defendant in that case in and found that he could have made the prejudice problem so it is an objective test and and is in the best interests of all the parties involved that we have clear guidelines in the test that we have right now that this court has already provided and what would you do with a case that say forget the deal but is already you know so it's a today case the person is charged he comes in to talk to his lawyer the lawyer tells him the wrists the sentences the likelihood of conviction and so before any of those he's got a plea deal in front of them and the client says presumably quite honestly there's no reason to lie at that point i don't care about jail i don't care that my chance of winning a very low i just care about one thing deportation that's the only thing i care about i'm going to be persecuted when i go back that's all i care about and the lawyer just gets it totally wrong gives him the wrong advice that well then if you if that's all you care about take this because that's the only way to avoid the one thing you care about and then it turns out it's just like this case at that point the lawyer was wrong so there you have a situation where forget the objective stuff we know what this individual thought they just cared about one thing and one thing alone the lawyer totally botched it and created a situation where the one thing he didn't want he got we would still say well no it's an objective inquiry how would that work just seems very strange to me in that situation where there's no reason to think there's lying there's no reason to think anything else going on but the truth truthful perspective of that individual you're one of the best way i can answer that question and i hope i am answering your question tonight conversative let's say he did but the persons in this situation and they decide to go to trial and they have a trial that's convicted them a question and they're convicted my question to the court is that person is any different then he would have been had the attorney given that bad advice and he pled guilty he would have been in the exact same predicament and that's the reason this court on two separate occasions i know fact found guilty the ploy not a matter of facts when cases that's the reason we look at the evidence because facts do we cases i would love to paint in on this excellent prosecutor and that the jury somehow believes that somehow i have who wouldn't be i'm in fact i think every prosecutor this stands before a jury they're putting forth facts that they believe will carry the day case those are his exact words he said i would have tried it but it is a bad case it was a looser so at the end of that at the end of the day your honor all the concerns that this court i see that my time is almost up mat this is this is a tough case and it is easy for the government to come up here and just take a hard line is not a hard line we're following your cases we're following the standards that this court has already laid out and this is not an outlier case this case case fit right in the center of it and we see no reason for this court t this is exactly the case your honor was describing and partly what your honor was describing there is no question from the record by the testimony trial counsel that mr lee was pursuing a negotiation that would result in him not being said a big deal the big deal in the case mr lee pursued in fact trial counsel testified that if mr leap pursued his constitutional right to a jury trial he advised the government would initiate deportation proceedings have a big conviction occurred counsel further communicate mr lee that acceptance of the plea offer from the government would avoid any risk of deportation and affect people system plea correct and the only reason this plea was accepted was the belief that he would not be deported counsel brought up a couple of these cases like tell your wealth tell your is distinguished from this case to begin with bill your got a lot of procedural problems this bill your did not raise at twenty two fifty five she right by us she raised twenty two fifty five but didn't allege ineffective assistance of counsel she failed to include that she came back much later with a core novus it was wisconsin state court has already said they were applying the wrong standard all they looked at it was would have been found guilty did it make sense to accept the plea bargain in light of the fact it would have been found guilty it failed to consider deportation was painted no no no one from the government testified during the hearing other than him i guess if you to be an advocate for my client i think implicit in mr fitzgerald know their under the united states government they are separate entities the only way the assistant u s attorney can help mr lee not be deported is by negotiations and you know what negotiations are just on the strength of the government's case against the accused also involve elderly parents proffers ever make cooperation negotiations also involve a person's business interest in the community being a lawful taxpaying citizen for twenty plus years explanations or mitigation as to why you're engaged in throwing parties and entertaining people things of that nature versus the evil intent of trying to move ecstasy out on the street i'm going just finish real quick  also want to remind everybody that ninety five percent of the cases are by plea bargains but they're done with competent advice by the attorneys as to what the actual consequences will be you know p diddy it came back to the to the commonwealth of kentucky after the supreme court in t reasonable doubt to do you would have had a chance of avoiding conviction subjecting him to mandatory deportation moreover had the immigration consequences of video use plea been favored factored into the plea bargain process counsel may have attained a plea agreement that would not have the consequences of mandatory deportation in light of the deal your particular circumstances taken such a chance would have been irrational for vidia exile is far worse prospect than the maximum ten year sen