NOT FOR PUBLICATION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-GEBDB-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 with 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 APPEALS
 2 

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 unprofessional 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.” United States v. Rodriguez-Vega, 797 F.3d 781, 

788 (9th Cir. 2015) (quoting Strickland, 466 U.S. at 694)). “[T]he performance and 

prejudice components of the ineffectiveness inquiry are mixed questions of law 

and fact,” Strickland, 466 U.S. at 698, and so are reviewed 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, defense counsel’s performance “fell below an 

objective standard of reasonableness.” Strickland, 466 U.S. at 688. On more than 

one occasion, defense counsel informed Johal that “should a jury find her 

guilty . . . she would be deportable,” when in fact she could have avoided 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, in 
 3 

violation of 18 U.S.C. § 1623. While “[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 the 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 § 1101(a)(43)(S) have been met”).

The government argues that defense counsel’s advice was accurate (and 

therefore not deficient) because the Guidelines sentence for Johal’s offense was 

more than one year. But judges are not bound to impose Guidelines sentences.

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 have 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 duty 
 4 

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 if 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 different.” 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 would have likely faced a Guidelines 

sentence of 15 to 21 months’ 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 than 12 months 

1 To 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 advice 

was all the worse, as counsel informed Johal that she was charged with a

deportable offense, although she may not have been.

2 Although the parties interpret this standard to mean that Johal must show a 

“reasonable probability” of receiving a sentence of less than one year, the Supreme 

Court has suggested that Johal could succeed by demonstrating only a “reasonable 

probability” of receiving a lesser sentence than she did. See Lee v. United States, 

137 S. Ct. 1958, 1968-69 (2017) (defendant 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. Emails 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 

sentence—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 probation, 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 permit 
 6 

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

offense.” Rodriguez-Vega, 797 F.3d at 788.

The government contends 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 the 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. That Johal did not 

pursue a plea agreement strategy because she was ineffectively advised supports—

rather than defeats—any claim of prejudice. 

We 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. For 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-Guidelines 
 7 

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 lenient 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, Johal could have entered into a plea

agreement and obtained 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. That 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 granted a variance or departure from an alternative Guidelines range of 15-21 

months, particularly in light of the substantial immigration consequences. Because 

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 recommendation 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 postconviction 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 advice because 

there 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.