NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. HARJIT JOHAL,

Defendant

- Appellant. No. 19

- 17244
D.C. Nos. 2:19

- cv - 00597

- GEB

2:14

- cr - 00169

- GEB

DB

- 3

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Argued and Submitted March 1, 2021 San Francisco, California Before: WARDLAW and BERZON, Circuit Judges, and CHEN, * * District Judge. Harjit Johal , a legal permanent resident, appeals the district court’s denial of her 28 U.S.C. § 2255 motion to vacate her conviction

. We granted a certificate of appealability wit h respect to the following issue: whether defense counsel rendered ineffective assistance by failing to accurately advise Johal about adverse

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. 

# FILED

APR 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

immigration consequences. For the reasons that follow, we vacate the conviction and remand to the district court.
To vacate her conviction on the basis of ineffective assistance of counsel , Johal must show (1) that defense counsel’s representation “fell below an objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessi onal errors, the result of the proceeding would have been different.” Strickland v. Washington , 466 U.S. 668, 688, 694 (1984)

. “A ‘reasonable probability’ is a standard of proof

. . . ‘somewhat lower’ than a preponderance of the evidence.” U nited S tates v. Rodriguez

- Vega , 797 F.3d 781, 788 (9th Cir. 2015) (quoting Strickland , 466 U.S. at 694)). “[T]he performance and prejudice com

ponents of the ineffectiveness inquiry are mixed questions of law and fact,” Strickland , 466 U.S. at 698, and so are review ed de novo , United States v. Birtle , 792 F.2d 846, 847 (9th Cir. 1986) (citing Strickland , 466 U.S. at 698)

. 1. On the current record, d efense counsel’s performance “fell below an objective standard of reasonableness.” Strickland , 466 U.S. at 688. On more than one occasion, d efense counsel informed Johal that “should a jury find her guilty

. . . she would be deportable,” when in fact she could have avoid ed removal despite being convicted by obtaining a sentence of imprisonment of less than one
year. Johal was charged with making a false declaration to a federal grand jury, in3

violation of 18 U.S.C. § 1623. Wh ile “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable,” 8 U.S.C. § 1227(a)(2)(A)(iii), “[t]he term ‘aggravated felony’ means

. . . an offense relating to

. . . perjury

. . . for which the term of imprisonment is at least one year .” Id . at § 1101(a)(43)(S) (emphasis added). Section 1623 carries a potential sentence of imprisonment of up to five
years
. But t

he statutory definition of “term of imprisonment” for purposes of an aggravated felony is deemed to include “the period of incarceration

. . . ordered by a court of law

. ” 8 U.S.C. § 1101(a)(48)(B). So the relevant metric is the term to which a defendant is actually sentenced, not the maximum sentence. See, e.g. , Renteria

- Morales v. Mukasey , 551 F.3d 1076 , 1089 (9th Cir. 2008) (explaining that “because [petitioner] was actually sentenced to a term of imprisonment of at least one year, the requirements of § 1 101(a)(43)(S) have been met”).
T he government argues that defense counsel’s advice was accurate (and therefore not deficient) because the Guideline s sentence for Johal’s offense was more than one year. But judges are not bound to impose G uidelines senten ces. United States v. Booker , 543 U.S. 220 , 264 (2005). And, for the reasons given below, it is likely that Johal’s actual sentence would h a ve fallen below the Guidelines range had she pled guilty to the charged offense.

“ [ W ] hen, the deportation consequence is truly clear, as it was here, the duty4

to give correct advice is equally clear .” Padilla v. Kentucky , 559 U.S. 356, 357 (2010)

. As Johal’s lawyer was indisputably wrong in telling her that she would necessarily be deportable i f convicted of any felony, or of the felony with which she was charged, he provided ineffective assistance of counsel. 1 2. There is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been diff erent

. ” Strickland , 466
U.S. at 694

. 2 Johal declares that “[i]f [ she ] had properly understood the immigration consequences of the charges against [her], [ she ] would not have taken [her] case to trial.” If Johal had instead pled guilty, she woul d have likely faced a Guidelines sentence of 15 to 21 month s ’ imprisonment ( given the three

- level reduction in offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1 & cmt.3 ) , rather than 24 to 30 months , making an ultimate sentence of less th an 12 months

1 T o the extent that, as the government argues , a conviction for 18 U.S.C. § 1623 would not necessarily fall within the definition of perjury, defense counsel’s a dvice was all the worse, as counsel informed Johal that she was charged with a deportable offense , although she may not have been. 2 Although t he parties interpret this standard to mean that Johal must show a “reasonable probability” of receiving a sentenc e of less than one year , the Supreme Court has suggested that Johal could succeed by demonstrat ing only a “reasonable probability” of receiv ing a lesser sentence than she did

. See Lee v. United States , 137 S. Ct. 1958 , 1968

- 69 (2017) ( d efendant who pled guilty based on erroneous advice of counsel was prejudiced even though he had “no viable defense”) ; Lafler v. Cooper , 566 U.S. 156 , 161, 164 (2012). Because Johal can satisfy the parties’ stricter interpretation, we need not address this distinction.5

much more likely. Further, Johal declares that , had she received accurate advice from her attorney, she “ would have sought a plea agreement for less than one year, offered to cooperate with the government’s investigation , and pled guilty to secure the lowest possible sentence. ” The government argues that no plea offer was actually made and that, if an offer had been available, there is no evidence that the government would have supported a sentence of less than one year

. But some plea offer quite probably would have been available . E mails between the government and defense counsel show that the government was “happy to send [ a plea] offer” to Johal. Johal’s counsel, however, indicated interest only in a no

- conviction deferred prosecution agreement , consistent with the erroneous advice he gave that any felony conviction would result in removal. It was that proposal the government was unwilling to entertain, not a proposal for a conviction coupled with a below

- Guidelines
senten ce

—

which, in practical effect, would have been only one month shorter than a bottom

- of

- the Guidelines sentence

. Further, Johal’s similarly

- situated co - defendant, Hamira Chechi, received a plea deal and ultimately obtained a sentence of home detention and p robation, with no imprisonment at all. Chechi was charged with the same offense as Johal , in the same indictment, and , like Johal , had no prior criminal history. Thus, Chechi’s plea deal at a minimum “indicat[es] a willingness by the government to permit6

defendants charged with the same . . . crime to plead guilty to a non

- removable offense.” Rodriguez

- Vega , 797 F.3d at 788. The government conten d s that Chechi is not similarly situated to Johal in the sense envisioned by Rodriguez

- Vega because Johal insisted on her innocence and went to trial , while Chechi pled early and cooperated with the government’s investigation

. But t he relevant inquiry is whether there is a “ reasonable probability that

. . . the result of the proceeding would have been different , ” Strickland , 466 U.S. at 694, had Johal

— after being correctly advised as to immigration considerations

— adopted a different defense strategy from the beginning of her criminal case

. She would then have sought to reduce her sentence by pleading guilty rather than seeking to avoid a conviction by going to trial

. T hat Johal did not
pursue a plea agreement strategy because she was ineffectively advised supports

— rather than defeats

— any claim of prejudice.
W e need not forecast the precise terms of any plea deal Johal would have received, nor need Johal establish a reasonable probability that she would have been offered a plea agreement as lenient as Chechi’s. F or Johal to avoid removal , any sentence of less than one year of imprisonment would do. Moreover, because

“ [ f ] ederal sentencing law permits federal prison authorities to award prisoners credit against prison time as a reward for good behavior,” Barber v. Thomas , 560
U .S. 474, 476 (2010) (citing 18 U.S.C § 3624(b)(1)), a bottom

- of

- the

- Guidelines7

sentence of 15 months’ imprisonment may have resulted in Johal serving only a 13

- month sentence , as the government and the district judge would have known

. Given the extremely l enient sentence accorded to Chechi and the small variance Johal would have needed to attain her much more modest goal of less than 12 months’ imprisonment , there is a reasonable probability that , but for defense counsel’s erroneous immigration advice, Joha l could have entered into a ple a agreement and obtain ed a 364

- day sentence , a sentence, in practical effect, only one month shorter than a bottom

- of

- the

- Guidelines sentence

. Further , even without a plea deal, had Johal entered an open plea she may well still have obtained a sentence of less than one year. T hat the district court sentenced Johal to a bottom

- of

- the

- Guidelines sentence when the Guidelines range
was 24

- 30 months does not rule out the possibility that the district court would have grante d a variance or departure from an alternative Guidelines range of 15

- 21 months , particularly in light of the substantial immigration consequences

. B ecause Johal’s lawyer did not realize the significance of the less

- than

- a - year sentence for removal purposes , he did not inform the judge of that significance. So the court’s failure to grant a downward variance or departure on inadequate information is not indicative of how the court would have sentenced Johal had it been faced with a lower Guidelines recommend ation and more complete information

.8

Moreover , in determining Strickland prejudice, we do not consider the “idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency

. ” Strickland, 466 U.S. at 695

. Even where the sentencing judge avers on post

- conviction review that he would not have given the desired sentence, “the test for prejudice is an objective one.” White v. Ryan , 895 F.3d 641, 670 (9th Cir. 2018) (citing Strickland , 466 U.S. at 695). So it is not relevant that the district judge was both the sentencing judge and the post

conviction review judge. See Kayer v. Ryan , 923 F.3d 692, 719

– 20 (9th Cir. 2019), vacated on other grounds sub nom. Shinn v. Kayer , 141 S. Ct. 517 (2020) (citing Strickland , 466 U.S. at 695)

. In sum, Johal was prejudiced by defense counsel’s erroneous advi c e because
t here is “a reasonable probability ,” Strickland , 466 U.S. at 694 , that, if properly advised, Johal would have pled guilty and avoided conviction for an aggravated felony.
VACATED AND REMANDED.