i think that what is critical to resolving this case is what happened in that determination by immigration did immigration just wholesale say well he's been convicted of this crime and therefore aggravated felony he's deported or did it in gauge in its own findings and make a determination by clear and convincing evidence that the crime involved more than ten thousand dollars and i don't know where i can find that can help me without i cannot unfortunately as outside the record i don't know the answer you know to that question i can only presume that the immigration court found that he pled to an aggravated felony in this case which was fraud involved over ten thousand dollars well i mean that's an assumption we don't have a way of knowing that i mean you might well be right and i think if that's the case then i think there's a problem but i think that if immigration undertook an independent analysis and found by clear and convincing evidence that the crime involved more than ten thousand dollars and was therefore an aggravated felony then then it undertook this independent analysis so it wasn't a foregone conclusion and that it was an aggravated felony that could pose a potential problem in the problem with this case is that this was resolved without an evidentiary hearing had the word truth when did you st learn that your client had been deported i think he was deported within days of the two thousand and fifty five and i understand that but my question is when did you st learn of that upon taking the case i was not the counsel for him at the two thousand and fifty five i took it over for purposes of the appeal don't you think it would have been helpful to point out to the court that in fact your client had been deported i don't think that it is dispositive the issue because what we do is you look at the time that the plea was entered and that's the focus of this this case so i apologize if i did not provide that information to the court but he is supported as the government filed in their notice earlier this week well i mean you'd you'd agree that some of the of an appeal is certainly evaporates well once a once a defendant has been deported i don't think that it necessarily does your honor i think the fact that he is deported and could what's the consequence urgent about it at this moment the fact that he has an aggravated felony which he would not have played had he known in the fact that he could go ahead and try to re answer the united states has he indicated any intention or desire to return to the united states yes or i believe the following this went to fifty five motion in hiring an attorney to evaluate the immigration consequences as he pled to certainly shows intent that he wants to remain in this country there's evidence in the record that supports that he has substantial ties to the united states he receives education secondary education in the united states for an eight year period he's young i think perhaps the most important fact is that he was engaged the united states citizen having familial ties to the united states and him being in love with somebody and wanting to stay the night states with that person a certain the jets leave reasonable desires to remain in the united states i think that's all expounded upon that he's going and fifty five your client has the burden of proof here and if your client hasn't proven that the reason he was deported was because immigration just accepted the conviction and decided it was an aggravated felony based on the mere fact of conviction we can't really consider the fact that he was deported at all can only i think it's outside the record yes your honor i think on the face of the record we have a letter from the immigration attorney stating that he pled to an aggravated felony that involved over ten thousand dollars which we know pursuant to u s law that's an automatically deportable offense so i think there's certainly evidence that would support his zisha and based off the attachments that he was going to be deported based off the the amount that he admitted to during the factual proffer that was given by the government and it's an interesting note that the government attorney at trial  big difference between the proffer at plea and the evidence before the court at sentencing that he was involve for almost a year if you go look at the proffer that he was  active between what march the th of april the sakes the something like that you see seeing diamond says november two august there's video evidence that's what with put up that what what the government put forth what he pled guilty the matter is at sentencing he was involved and a big criminal conspiracy involving a lot of people that went from november but in two thousand and fifteen whole case broke at that corrects correct in all its ultimate he was held responsible for one hundred and fifty three thousand dollars in restitution so this isn't a situation where he's walking in and this is a loss amount that is questionable up to ten thousand dollars a reasonable attorney under the circumstances as plug would know that this was going to be an aggravated felony and i think when you look let's leave if we know that him his client was involved a dissuade big good spirit over the lard long period of is an aggregate amount over a one year period so during the sentencing the defense attorney was saying well i want to be able to make these arguments that the last mount should be one thousand dollars had he pled to the conspiracy  completely contrary to count two which is in compas is an aggregate amount and again over a one year period in the superseding indictment that again goes from november to august and compassing this entire conspiracy where in the record can we find the basis for the determination of rest of the restitution amount the the restitution hearing was not transcribed there is a restitution order as part of the record and that's where the  it was based off the twenty to fifty five motion as pled the restitution amount was stipulated by defense counsel as far as a transcript of that hearing we do not have been part of this record to the record to see did this plea colloquy this plea agreement or other statements made during sentencing cure any prejudice we have decisions directly on point we cited heavily involved or deportation consequences trans my view and there is no way in the world a lawyer could competently tell the defendant in this case whether or not he would be  and then come to some kind of a conclusion and i don't know how the world at the time of the guilty plea the larger possibly do that i think is pretty simple of the fact that the factual proffer stated that capital one has submitted loss now of over two hundred thousand dollars i understand that but the but the but the indictment and what was going to be before the sentencing judge we're far beyond the little skinny i call it skinny proffer that the government made it said at the plea and we don't have a situation here as i understand it that he made an involuntary plea because he pled to something small and he was sentenced to something large i believe that we want to honor on a representation that all this other information was not good big used by the sentencing judge the involuntary plea came from the perspective that ha here this court can affirm because even assuming there was deficient prejudice even if we just take that assumption for the sake of argument mr martin cannot show prejudice on this record and that is because regardless of what his attorney advised him he said are we limited to the prejudice as you know the court is not only a way of whether was that affected correct correct what i can't understand is how the world could that could a lawyer without guessing have said to the defendant when he pled guilty giving that overarching criminal activity it was a which was beyond that the factual statement that the government presented to the c case that kind of gets back to the point of what the defendant said in his plea and at the plea colloquy before you get to that i do want to focus on deficient performance st sure because i'm not sure that i think if there is deficient performance then there might be a problem i think there might be prejudiced so let's talk about the fishing performance your colleague says that there was deficient performance because even though the indictment said that he was pleading to conduct of obtaining anything in value aggregating a one thousand dollars or more in two different counts so maybe as much as twenty two thousand dollars or more that necessarily council should known that the amount involved was going to be more than ten thousand dollars which would have made it an aggravated felony because the factual proffer included in amount of one hundred thousand dollars plus do you disagree with that and if so why and related to that question is the factual proffer by agreeing i mean generally the way they're done is you know the government would prove beyond a reasonable doubt blah blah blah so that's a higher standard than clear and convincing evidence before immigration does that present a problem for the government if you want to address all those that be great thanks or sure of st say again i think the easiest route for the score is to rule on prejudice but i do want to answer your question so on the deficient performance prong here he did not plead to something that was obviously going to be an aggravated felony on its face there was a reference to two hundred thousand dollars plus in the factual proffer that was part of the plea i agree with that but nothing in that plea or the factual proffer linked it to mr martin specifically mr martin still had to be held responsible for some amount of loss for his particular conduct and in fact at sentencing the government was clear that mr martin was the least culpable out of all of his friends involved in this conspiracy  the government said you know he came in at the tail end he was only involved for about a month and for that reason the government filed you know a five k motion for a downward departure he got twelve months instead of i believe it was going to be thirty six to forty two months otherwise so there was nothing that told him or his defense counsel or the court at the time that he was necessarily going to be held responsible for over ten thousand when you i'm sorry can you remind me of was two hundred and ten thousand dollars and then separately at the restitution hearing he held him responsible for around one hundred and fifty thousand dollars and that amount was roughly the same as the i mean the restitution amount the same as the amount  factual profit rate i believe in the factual proffer it was just the whole amount of the conspiracy of the loss to capital one which is about two hundred and ten thousand dollars so the restitution amount that mr martin was held responsible for  for somewhat less than that and as my opposing counsel said we don't have the restitution transcript here in the record so i don't know what the genesis of that number was it was the sentencing amount then the same as the proffer amount yes so that's i mean that seems like maybe it's a problem i i disagree because again the court still had to determine what mr martin specific conduct was and in the factual proffer it listed certain transactions that mr martin himself did you know i think one was for three hundred dollars one cent was for nine hundred dollars something so if you take those individual transactions that were specifically linked to mr martin as his defense counsel noted they added up to only approximately one thousand one hundred dollars which is why his counsel objected to the p s i i find in and said you know look he's only responsible for this small amount which gets us back to this was not an aggravated felony on the face of it when he pled guilty step that he pled guilty and accepted a proffer two thousand two hundred dollars and some odd one thousand dollars right again but that was not linked specifically to him at the time i would also know and it might be helpful to think but then how can he plead guilty beyond a reasonable doubt that the government would have established whether spec to his to what he was pleading guilty to well that was for relevant conduct for purposes of the p s i i and again i don't know that it was necessarily linked to mr martin specifically in fact i think it wasn't but even if it were which again we would dispute that even if it were the immigration court is not bound by that i think that was alluded to during the last argument and there's case law in our brief including from the u s supreme court saying that you're saying they're not bound to it because because at sentencing it's established by a preponderance of the evidence and that's all that matters it doesn't matter that when given the factual proffer the government would say we would prove beyond a reasonable doubt because the the defendant is not admitting the facts in the proffer could be proven beyond a reasonable doubt well in it it is a different analysis as well in there and the immigration proceedings because at the sentence in part in the criminal case the question is relevant conduct in this court is held in and that that a much broader concept than what a defendant is held responsible for in terms of victim loss in an immigration proceeding and that's because relevant conduct can include conduct that was not charged acquitted conduct a whole host of things whereas in an immigration proceeding as we noted in our brief the government has to prove by clear and convincing evidence that the defendant was responsible for this particular amount of loss so again the in the immigration context they're just not bound because it's a different analysis and even restitution orders there's a rd circuit case for example saying that immigration courts are not bound by restitution orders because again it's a different analysis so it wasn't an aggravated felony at the time because the plea agreement didn't tie any amount to mr martin specifically he had the opportunity to litigate that in even a nd opportunity to litigate that and the immigration context just as a matter of housekeeping though and i'm sorry i seem to be stuck on this but i am not really sure what to do with it what do we do with the fact that there is this factual proffer where the government says we would prove the following beyond a reasonable doubt and the actually the petitioner in this case agrees to those facts and his counsel doesn't say well we are green with everything except the last amount what do we do with that how did how do we decide that that's not relevant because that's what we have to do don't we i mean we have to decide that doesn't matter to the analysis because if we get to the sentencing part then i think you're right but what do we do with that part with that part again i with the court's indulgence i would like to switch to the prejudice prong just because ultimately they don't think it matters you're welcome to spend your time however you want and you might convince me that there's no prejudice but i think you're better argument is  that there wasn't deficient performance but you can spend your time however you want this is what's troubling me on the deficient performance part right oh so on the deficient performance another way to think about this i think is would it have been deficient for his council to advise him that deportation is mandatory if he pleads guilty to this offense and i think it could or could have sat as the as the supreme court has said that is likely mandatory likely mandatory right it it's very possible that that could have been considered deficient performance because if you think about what would have happened a that would have been an inaccurate for the reasons i've been stating because i don't think that this was necessarily going to become an aggravated felony at the time of the plea but in addition there was overwhelming evidence of guilt here it could have pushed him into a trial with overwhelming evidence of guilt and it actually could have put him in a worse position for deportation purposes because at that point with the overwhelming evidence of guilt he could have been found guilty of all three counts including the conspiracy count he would have been much more limited in his ability to dispute the loss amount that is attributable to him specifically and he would have lost all the plea benefits including the adjustment for acceptance of responsibility i would agree with you right if his counsel had said during the proffer we agree with everything except the last amount then i think you would be on completely solid ground i still don't know what to do with the l amount in the proffer that's what i need some help with so in the proffer it again i would just circle back to it it just says that the capital one loss amount is what it was it was two hundred thousand dollars but there are multiple people involved in this conspiracy mr martin didn't plead the conspiracy count he only pled to the substantive counts and the factual proffer only linked very small amounts with martin specifically so while it's true that the factual proffer said that this entire conspiracy cost capital one dollar this large amount of money it doesn't follow necessarily from that that mr martin is responsible for that especially because as the government said during sentencing he was he came in at the tail end he was the least culpable he was involved in the fewest amount of transactions these are all in the sentencing transcript record so that would be i think lawyer couldn't predict anything correct or couldn't predict that's the way the nature of the beast is in the government couldn't guarantee anything correct the government could make off small plea proffer but it doesn't have any effect of what's going to ha that the court could take all kinds of things into account as a lawyer could advise him because he could no correct but but i would not have pled guilty if at the end of the day because of what the court at sentencing the immigration court would say it's an aggravated felony that isn't that what we're talking about here well he may but  i understand but isn't that what he is in effect saying i would not have pled he if at the end of the day as a result of the court's sentence he immigration would order be deported he's sane yet what he's saying is that if i had known i would be subject to automatic removal i would have gone to trial which is the exact i'm right will be opposite of what he said in his plea agreement he wants to that occurred in march and april of two thousand and sixty he was not only warned that is it right there in the transcript it would be his words right but what i'm saying is as i perceive his argument is the plea was involuntary because i had never would have pled guilty had i known this might happen that maybe what he wants to argue that's beyond the scope of the c e o i know he can argue that but that's the heart of what he's arguing is it not right and and again it's refuted by his plea agreement and then there's effective assistance of counsel context that's his argument correct i mean that does no way and in my view there's no way in the world th t the lawyer could have told him that that it sets a good you may be held accountable for far more d than these episodes that march and april to plead guilty he is saying the exact opposite now that you've lied and which is why in my view you get these kinds of cases you cannot ineffective assistance of counsel argument it terms of performance is unfair to the lawyer because a lawyer can't possibly have a crystal ball look down the road that at the end of the criminal case and then say well you're going to be deported automatically correct i agree there no way this lawyer could have predicted the old the only argument in my view if i were representing the poster i would have said the plea was involuntary because i never would have plea pled in the st place that maybe what he could have said but he can't on this record because he said correct but even if that were his claim if even if his claim or it was involuntary again he said definitively and unequivocal here in his plea agreement even if the consequence is removal automatic removal i want to plead guilty he can now come before this court on any claim on a stricken claim on an involuntary his claim and say the exact opposite which is if the consequences automatic removal i want to go to trial those are opposites that is why he cannot had a loss amount in excess of two hundred thousand dollars mr well your client mr martin did not did not agree to did not agree that that had anything to do with him specifically and in fact when you look at the factual proffer he agreed that he was responsible for on march st seven hundred and eighty two dollars worth of items and on march th three hundred and sixty nine dollars worth of items so if that's the case then why should the fact that the conspiracy count resulted in two hundred thousand dollars matter here since your client didn't plead to the conspiracy count in plea the conspiracy count he pled to counts two which talks about an aggregate amount occurring over one year period of time in the superseding indictment charge the november two august dates so the count to encompasses this entire conspiracy just as count one does as well and when we look at the parties that litigated this case below everybody seems to agree that he pled to an aggravated felony reading from the government's response was written was it written by the trial counsel the twenty t dollars so the argument below in a twenty five dollars proceedings at the trial level the government was making the same argument they centrally in my opinion conceded the fact that this was an aggravated felony if you look at the district judge which was the same foreseen what would happen at sentencing had the two hundred thousand dollars amount not been actually stipulated or it would be what they put forget about the  concede i would say that the lawyer couldn't possibly for see for sure what the court would do it sentencing i think he did foresee and that's the reason why he stipulated to the last nonbeing two hundred that i can't perceive us writing an opinion in a case like this of loving somebody who could be removed in one of the criminal cases and somehow arj the lawyer with with it in effect of performance under strictly in effect of performance because the lawyer did not foresee that what that the court would deny without evidence you're hearing well the lawyer would have to a competent lawyer would have to say always don't plead guilty i wouldn't say that i would i would say that under this standard that we are today without that hearing in this case the record ha refute the claim so if this court accept the position that we have today the proper remedy is to remand it back to the district courts a whole never venture hearing where the attorney might very well argue i couldn't have foreseen  lawson out in excess of ten thousand dollars and mr martin would have the right to go ahead and confront the attorney as to how could you not forsee that when you state when you had your client stipulates the fact that there was loss of capital one in excess of two hundred one thousand dollars let me ask you as a practical matter if we granted the relief you're seeking namely a remained for an evidentiary hearing how would that work it was like the government would the government be required to bring address at the lower level and work out with the government all he would say if he was brought back is i would not have pled guilty at all had i been it was a lawyer but lawyer would have told me say correct ok and where's the contemporaneous evidence during the plea proceeding that mr martin wanted to avoid deportation the evidence that there is none you know he said yes or no sir to all the judge's questions however in a twenty to fifty five pleading c has presented evidence that he spoke to his immigration attorney mclean if he had told the judge at the plea hearing that i'm concerned about being deported and i know that at sentencing such and such might happen and that would cause me to be deported and i don't want to plea and the court would not have except that the guilty plea we agree i would agree with that your honor so in effect he invited the court to take the guilty plea i think because he was told that deportation was a mere possibility instead of mandatory as cited to well