[00:00:00] Speaker 02: Let's begin. [00:00:00] Speaker 02: It's 24-4073, United States versus, I'm sure butchered this, but Aguayo Montes. [00:00:10] Speaker 02: And with that, Council Propellant, if you'd make your appearance and proceed, please. [00:00:16] Speaker 01: Good morning. [00:00:17] Speaker 01: Can you hear me, judges? [00:00:19] Speaker 02: Yes. [00:00:20] Speaker 01: Wonderful. [00:00:21] Speaker 01: This is Benji McMurray here on Mr. Aguayo. [00:00:24] Speaker 01: I've been a defense attorney for a lot of years and when I advise my clients about taking a plea agreement, I often tell them that my most important function at that moment is to help them assess the risks of different possibilities. [00:00:42] Speaker 01: Usually what we're talking about is the risk of a conviction after going to trial. [00:00:47] Speaker 01: I don't think anybody could reasonably conclude that I would discharge my [00:00:53] Speaker 01: my duty as a criminal defense attorney by telling my client, if you go to trial, you might be convicted. [00:01:01] Speaker 01: That would be unimaginable. [00:01:04] Speaker 01: And the suggestion by the government that a defendant or that a defense attorney discharges his constitutional responsibilities under PDEA by just saying that a particular risk exists [00:01:18] Speaker 01: really misunderstands completely the entire process of what defense attorneys do. [00:01:25] Speaker 01: Now, in this case, what we see is a defense attorney who violated Padilla in two significant ways. [00:01:39] Speaker 01: Number one, the defense attorney affirmatively misrepresented the immigration consequences of this conviction. [00:01:47] Speaker 03: How did he do that? [00:01:51] Speaker 03: He told them that there may be immigration issues. [00:01:58] Speaker 01: So if he had stopped there and the government was right on the law, then we wouldn't have a problem. [00:02:07] Speaker 01: But he didn't stop there, and the government's wrong on the law. [00:02:10] Speaker 01: But in terms of not stopping there, he didn't just say you may be deported. [00:02:14] Speaker 01: What he actually said was, you don't have to worry about this until you get to prison. [00:02:21] Speaker 01: And that was flat out wrong. [00:02:25] Speaker 01: I don't think there is any circuit, any standard, where that advice would be sustainable. [00:02:32] Speaker 01: Once Mr. Aguayo had been convicted and found himself in prison, there was no immigration attorney anywhere who could resolve the problem that his conviction made him automatically deportable. [00:02:45] Speaker 01: So that's the first problem, is that we have an affirmative misstatement of the law, which even the concurrence of Padilla would countenance as a Sixth Amendment error. [00:02:56] Speaker 04: Now second- So let me clarify that you're basically suggesting that we don't need to [00:03:03] Speaker 04: We don't even need the we don't need to analyze what what could be a what the perfect language is whether it's you know certain certainty is going to be afforded or whether it's subject to deportation, because this was a permanent and this advice that even pre idea will have been actually. [00:03:23] Speaker 01: Yes, I agree with that, Your Honor, that in fact, the affirmative misstatement here would have been reversible or would have been deemed a violation even before Padilla. [00:03:35] Speaker 01: I don't think there was any question before Padilla. [00:03:38] Speaker 01: In fact, the Solicitor General conceded the point, the concurrence agreed with the point that affirmative misadvice was constitutionally problematic. [00:03:48] Speaker 02: Let me understand one point, though, Mr. McMurray. [00:03:53] Speaker 02: Let's assume you end up prevailing. [00:03:56] Speaker 02: Isn't it important for the prejudice aspect that we know the scope of the deficient performance? [00:04:05] Speaker 02: In other words, there's one thing, the affirmative misstatement as it relates to, you don't have to worry about this. [00:04:11] Speaker 02: But I mean, if the statement that you might be deported [00:04:16] Speaker 02: is in itself another affirmative misstatement, then it's important for us to make a determination as to whether it is or it isn't, right? [00:04:28] Speaker 01: I'm not sure I understand the question. [00:04:30] Speaker 02: Alright, then let me rephrase it. [00:04:33] Speaker 02: Assuming the wonderful world of which you win, okay? [00:04:36] Speaker 02: And if you win, and then the question we're talking about is, how was he harmed? [00:04:43] Speaker 02: In other words, would it have been such that he would have been harmed by this advice that he received? [00:04:50] Speaker 02: we would want to know what is the scope of the misconduct, if you can use that word, a deficient performance, in order to measure the extent of the harm. [00:05:04] Speaker 01: Well, Judge, and I apologize if I'm missing your point, but it seems to me that your question may be conflating a little bit the first prong and the second prong. [00:05:15] Speaker 02: I'm trying to do exactly the opposite. [00:05:18] Speaker 02: Judge Moritz talked about the notion of do we have to get into the nuance [00:05:23] Speaker 02: of what Padilla commands, what is the nature of the counseling that needs to be provided, and what I'm trying to suggest is perhaps we have to do it a little bit because we have to know what is it that was violated, what ran counter to Padilla here, if anything. [00:05:44] Speaker 01: So let me speak to that. [00:05:46] Speaker 01: And I do think it's an important question. [00:05:48] Speaker 01: And in fact, I think this is really the second big piece of this, because in addition to identifying an affirmative misstatement, I do think that counsel fell short of his affirmative obligations under PDEA. [00:06:07] Speaker 01: And so [00:06:09] Speaker 01: Let's talk for a minute. [00:06:12] Speaker 01: The government says that effective counsel can discharge his duties by simply saying, advising the defendant, you may be deported. [00:06:22] Speaker 01: All right? [00:06:23] Speaker 01: And the government, I think, in making this argument, really cherry picks one phrase of Padilla where they state the holding at the end of the case [00:06:35] Speaker 01: And the government construes this statement of the holding in a binary fashion. [00:06:42] Speaker 01: You have to advise them whether a risk exists, yes or no, on or off, black and white. [00:06:51] Speaker 01: And so that's the government's argument. [00:06:55] Speaker 01: And I think when you read Padilla in its context, that [00:07:00] Speaker 01: Myopic focus on that last claim really is unsustainable. [00:07:06] Speaker 01: So let me just point you to a couple parts in Padilla that I think are really useful. [00:07:12] Speaker 01: First of all, you've got at the very beginning of the decision, [00:07:15] Speaker 01: You have language that talks about that the counsel has the duty to advise about an automatic deportation. [00:07:28] Speaker 01: On page 1478 of the Supreme Court Reporter, constitutionally competent counsel would have advised defendant that his conviction for drug distribution made him subject to automatic deportation. [00:07:42] Speaker 01: This is the risk that Padilla is talking about, not just the mere possibility of removal. [00:07:49] Speaker 01: I suspect probably every non-citizen defendant walks into court that very first day knowing there's a risk. [00:07:58] Speaker 01: They probably don't even need an attorney to tell them there's a risk. [00:08:01] Speaker 01: Now in many cases they do, [00:08:03] Speaker 01: You know, but but what they need is an attorney who will tell them who will quantify that risk now. [00:08:09] Speaker 01: So how much does an attorney need to say about that? [00:08:12] Speaker 03: The Supreme Court has never said that you have to quantify and go into great explanation about the probabilities. [00:08:20] Speaker 03: You must advise him that he may be deported. [00:08:26] Speaker 03: So the rest of it's just generous. [00:08:30] Speaker 01: Well, again, Your Honor, I think that trends towards this myopic reading of Padilla because the Supreme Court has given us some guidance. [00:08:40] Speaker 01: And the Supreme Court, to be sure, does say there are situations where the consequences are too complex to pin down. [00:08:47] Speaker 01: But the Supreme Court identifies at least one category of cases where it's not so complex. [00:08:54] Speaker 01: And so, in fact, this is on page 14. [00:08:57] Speaker 03: Do you have to show or at least argue that but for the lack of appropriate advice, the plea would not have been taken? [00:09:07] Speaker 03: And if it wasn't taken, the conviction is open? [00:09:12] Speaker 01: Yes, Your Honor. [00:09:13] Speaker 01: But that goes to prong two of Strickland. [00:09:16] Speaker 01: That goes to prejudice. [00:09:18] Speaker 01: That's a factual question. [00:09:19] Speaker 01: There is no finding. [00:09:20] Speaker 03: That's what Chief Judge was trying to get at. [00:09:24] Speaker 03: Where is the prejudice? [00:09:27] Speaker 01: Well, you're talking the judge in this case. [00:09:31] Speaker 03: Judge Holmes was trying to get you to answer that question. [00:09:35] Speaker 01: Well, so again, I think the prejudice, so there are two parts, right? [00:09:45] Speaker 01: The constitutionally deficient advice. [00:09:48] Speaker 01: And we can talk about the ways in which this was constitutionally deficient. [00:09:52] Speaker 01: We can try and quantify or qualitatively describe what competent advice should look like. [00:09:59] Speaker 01: And I do have some comments on that still to make. [00:10:02] Speaker 01: But with respect to prejudice, the prejudice prong is simply, had defense counsel effectively advised the defendant, would the outcome have been different? [00:10:14] Speaker 01: would he have taken the plea agreement? [00:10:16] Speaker 01: And on that second prong, that is a highly factual determination. [00:10:21] Speaker 01: The district court did not reach that question. [00:10:24] Speaker 01: And so a remand would be necessary to decide had the defendant known [00:10:30] Speaker 01: the consequences, would he actually have rejected this plea agreement? [00:10:36] Speaker 02: Perfect. [00:10:38] Speaker 02: Let's go back to the deficient performance, and I want to tease out something from your colloquy with Judge Kelly. [00:10:46] Speaker 02: It seemed to me, the language that I looked at and the idea that sticks out to me is where the court said, [00:10:52] Speaker 02: when the deportation consequence is truly clear, as it was in this case, the duty to correct advice is equally clear. [00:11:00] Speaker 02: Now, it seems to me that one could posit, and I want to get your reaction to this, one could posit that a counsel is not required to do a probabilistic analysis, and I think that's what Judge Kelly referred to, [00:11:15] Speaker 02: but they are required to tell you things that are straightforward and clear, like this makes you deportable, full stop, and you're presumed to be deported under this, because I think that language appears in Padilla as well. [00:11:32] Speaker 02: And so, I mean, it seems to me there are two different things here. [00:11:36] Speaker 02: Do you accept the notion that if it's clear that number one, you're deportable, and number two, it's presumed you'll be deported, [00:11:45] Speaker 02: that those things are clear on the face of the statute. [00:11:49] Speaker 01: Yes, yes, I agree with that. [00:11:51] Speaker 01: I think that's exactly what Padilla says. [00:11:53] Speaker 02: And let me hit the pause button. [00:11:55] Speaker 02: All right, go ahead. [00:11:56] Speaker 02: That's what Padilla says. [00:11:58] Speaker 02: Would you accept also that you would not necessarily be in a game where you have to give odds of whether you ultimately would be deported? [00:12:09] Speaker 02: That was Judge Kelly's reference to probabilistic reasoning. [00:12:13] Speaker 02: It would seem to me that that is not required by Padilla, but I want to hear your response to it. [00:12:19] Speaker 01: So I think that when it comes to this probabilistic inquiry, I do think that's a little bit more complicated. [00:12:26] Speaker 01: My clients ask me all the time, what are the chances I'm going to get convicted? [00:12:30] Speaker 01: What are the chances I'm going to get a sentence of X, Y, or Z? [00:12:34] Speaker 01: And I often oblige them by giving them a number. [00:12:38] Speaker 01: 60% chance you get a 10-year sentence. [00:12:43] Speaker 01: 20% chance you win a trial, whatever it is. [00:12:48] Speaker 01: There is nothing scientific about those odds. [00:12:52] Speaker 01: I can't imagine a scenario where a defense attorney who oblige the defendant by giving odds [00:13:02] Speaker 01: you know, was deemed to be ineffective because he obliged them in that way. [00:13:08] Speaker 02: I mean, this is... But what I'm saying is, would that defense counsel be required to give the grace that you did in that situation? [00:13:17] Speaker 01: No, I don't think so. [00:13:18] Speaker 01: And Padilla wouldn't require that, right? [00:13:20] Speaker 01: And I don't think Padilla requires that kind of specificity with respect to the odds, but what Padilla does require is that what's knowable, you have to tell him. [00:13:31] Speaker 01: All right. [00:13:32] Speaker 01: And in other cases, in a different case, we could argue about what's knowable. [00:13:37] Speaker 01: But this case is indistinguishable from Padilla. [00:13:41] Speaker 01: Going back again to 1478, [00:13:44] Speaker 01: Constitutionally competent counsel would have advised the defendant that his conviction for drug distribution made him subject to automatic deportation. [00:13:54] Speaker 01: That's the affirmative duty that Padilla articulates. [00:13:58] Speaker 01: This, like Padilla, was a drug distribution conviction. [00:14:02] Speaker 01: There is no meaningful distinction. [00:14:04] Speaker 01: This case is controlled by Padilla. [00:14:06] Speaker 01: I'd like to reserve my time. [00:14:08] Speaker 03: All right. [00:14:09] Speaker 01: Go ahead. [00:14:09] Speaker 01: Go ahead. [00:14:11] Speaker 02: I think Judge Moritz has something to say. [00:14:13] Speaker 04: Just a quick question. [00:14:14] Speaker 04: You just, I think you may have just answered it right, that language would be about being subject to automatic deportation. [00:14:21] Speaker 04: Your brief uses different language, sometimes the Ninth Circuit's language about certainty and they're all very close, but would you say that had that been the language used here, subject to automatic deportation or presumptive deportation, that it wouldn't have required the word certainty, which to me seems to get more into the probable [00:14:43] Speaker 01: I do agree with that, Judge, and I will hold that out as a deficiency in my briefing. [00:14:50] Speaker 01: There are a lot of ways that people have gotten at this, and the Ninth Circuit has gotten at it one way. [00:14:57] Speaker 01: I will note that the Eighth Circuit in Ramirez Jimenez, that the government focuses on, that's not an ag felony case. [00:15:04] Speaker 01: That's a crime involving moral turpitude. [00:15:06] Speaker 01: That's tremendously complex. [00:15:08] Speaker 01: Ag felony, not complex. [00:15:11] Speaker 02: Let me tease out from Judge Maritz's point. [00:15:14] Speaker 02: It seems that Padilla regrettably has different uses of language in this, but it seems to me that when the word presumptive [00:15:24] Speaker 02: Lee deportable matter more because, I mean, he could have some discretionary relief. [00:15:29] Speaker 02: We don't know, right? [00:15:30] Speaker 02: What we know is that the statute makes him deportable and it can be presumed that he is deported. [00:15:36] Speaker 02: And Padilla uses the language presumptive presumptively deportable, right? [00:15:43] Speaker 01: Let's see. [00:15:44] Speaker 01: I don't remember if Padilla uses the word. [00:15:46] Speaker 02: It uses. [00:15:46] Speaker 02: I'll find it. [00:15:48] Speaker 02: It uses the word. [00:15:49] Speaker 02: Yeah. [00:15:50] Speaker 02: OK, go ahead, please. [00:15:51] Speaker 01: Well, I guess here's the thing. [00:15:54] Speaker 02: I think that there are a lot... Presumptively, it says deportation was presumptively mandatory. [00:16:00] Speaker 01: Yes, thank you. [00:16:02] Speaker 01: I would feel very comfortable using those words. [00:16:05] Speaker 01: I think the language of Padilla requires reversal in this case. [00:16:11] Speaker 01: Let me just say very quickly, if I could, as a concluding thought. [00:16:16] Speaker 01: I believe that the standard of Ramirez Jimenez is supportable by Padilla. [00:16:22] Speaker 01: And I believe that Judge Holmes, that you could be right, and probably are right, that if it's clear that defenses to removal exist, [00:16:32] Speaker 01: that competent counsel should at least acknowledge those and as in this case, it takes... Oh no, I wasn't positing that. [00:16:42] Speaker 01: No, no. [00:16:43] Speaker 02: All I was saying is presumptively mandatory, which means that you may be able to get out of it. [00:16:51] Speaker 02: That's not my business to know how you could get out of it. [00:16:55] Speaker 02: No, I wasn't going there. [00:16:57] Speaker 01: I think that [00:16:59] Speaker 01: Constructing Padilla in that way would not be incorrect. [00:17:03] Speaker 02: Let me ask you a housekeeping question, and opposing counsel, I'll give you sufficient time. [00:17:09] Speaker 02: Let me ask you a housekeeping question. [00:17:12] Speaker 02: There is some language about Mr. Kramer. [00:17:16] Speaker 02: The idea was that Mr. Kramer provided he met with Aguello to discuss the plea agreement. [00:17:23] Speaker 02: And did he do more than just read what the plea agreement said about what the condition would be for his possible deportation? [00:17:35] Speaker 02: In other words, the language in the plea agreement, did he give a separate advisement apart from that? [00:17:41] Speaker 01: That would be a great question at an evidentiary hearing. [00:17:44] Speaker 01: The information that I know is largely described in the petition. [00:17:53] Speaker 01: Of course, in the petition, it's in a summary fashion of a conversation, but Mr. Aguayo says, [00:17:59] Speaker 01: I told him I didn't want to be deported. [00:18:02] Speaker 01: That was my biggest concern. [00:18:03] Speaker 02: But the petition speaks as if what he did is he came in and said, you know, I want you to know this is what we are agreeing to and read the language about. [00:18:11] Speaker 02: You may be deported. [00:18:13] Speaker 01: Yes. [00:18:13] Speaker 01: My understanding is that there was zero explanation of what that meant and that such was not needed because that could be taken up with an immigration attorney once he was in prison. [00:18:25] Speaker 02: Understand. [00:18:26] Speaker 02: Okay. [00:18:26] Speaker 02: Thank you, counsel. [00:18:28] Speaker 02: We'll hear from the government now. [00:18:31] Speaker 00: Good morning, Your Honors. [00:18:32] Speaker 00: Briggs Matheson for the United States. [00:18:35] Speaker 00: Your Honors, I'd like to start with the question that you posed to my friend about whether there is any prejudice shown in this case, because I do think that that is, as Strickland posited, the more straightforward basis to affirm the district court's denial of Mr. Aguayo's 2255 petition. [00:18:52] Speaker 00: And that analysis begins from the strong presumption that what Mr. Aguayo told the district court below, under oath in writing and orally, [00:19:01] Speaker 00: was true, and that's that he wanted to plead guilty because he was guilty, and that he wanted to plead guilty knowing that that could lead to his ultimate removal from the United States. [00:19:12] Speaker 00: And as this court explained in Herd v. Addison, in Dominguez, most recently in United States v. Kern, the inquiry at that point focuses on the objective evidence, the factual circumstances surrounding the plea. [00:19:25] Speaker 00: And it asks whether it would have been objectively rational for Mr. Aguayo to have rejected what was ultimately a very favorable plea agreement. [00:19:33] Speaker 00: The plea agreement contained a stipulated sentence that was about half of the low end of Mr. Aguayo's. [00:19:38] Speaker 04: Well, you're going into prejudice now. [00:19:40] Speaker 04: We should focus first on the performance issue. [00:19:44] Speaker 04: And I guess I don't understand why the fact that he told the court that he understood the plea when it said, [00:19:54] Speaker 04: And please use this exact language. [00:19:56] Speaker 04: You may be at risk for deportation. [00:20:00] Speaker 04: And he says, he says, I asked my counsel, what does that mean? [00:20:04] Speaker 04: That's very important to me. [00:20:06] Speaker 04: What does that mean? [00:20:07] Speaker 04: And my counsel said, I don't really know. [00:20:10] Speaker 04: I'm not an immigration lawyer, but hey, don't worry about that till you're in prison. [00:20:14] Speaker 04: And then you can talk to an immigration lawyer. [00:20:16] Speaker 04: That's what his counsel explained that that line in that he was going to be agreeing to meant [00:20:23] Speaker 04: And so he said, okay, that's his testimony, I guess. [00:20:27] Speaker 04: I said, okay, I can agree to that, that's what I'm gonna do. [00:20:31] Speaker 04: He was given potentially affirmative misadvice by his, if this was affirmative misadvice, by his counsel that led him to say to the court, okay, yes, I understand what risk of deportation means. [00:20:48] Speaker 04: So aren't we really, I mean, isn't that really kind of fact question that, [00:20:53] Speaker 04: And as opposed to anything that we can talk about yet, what the court might've, what impact his agreements to the court meant. [00:21:05] Speaker 04: You see what I'm saying? [00:21:06] Speaker 04: We're looking at what counsel told him and whether that might've confused him. [00:21:12] Speaker 00: I think I understand the court's question. [00:21:13] Speaker 00: Let me take it in two parts. [00:21:15] Speaker 00: The last part of your honor's question, what can we take from his statement at the plea hearing? [00:21:21] Speaker 00: What can we take from his signature? [00:21:24] Speaker 04: That was your focus. [00:21:26] Speaker 04: That's your focus. [00:21:27] Speaker 04: But my focus is what did his attorney tell him about that very line? [00:21:31] Speaker 00: Understood, your honor. [00:21:33] Speaker 00: Just briefly, the point that I was making is just the departure point for the prejudice analysis is the presumption that what Mr. Aguayo previously told the court was true. [00:21:41] Speaker 00: Now, it goes on from there, and I'm sure we'll get into that. [00:21:44] Speaker 00: But to address the other part of your question, the scope of counsel's duty under Strickland, under Padilla. [00:21:52] Speaker 00: I want to address first my friend's suggestion that what Padilla really requires is more than advising the client whether his guilty plea carries a risk of deportation. [00:22:02] Speaker 00: And that's the language that Padilla articulated in its holding. [00:22:06] Speaker 00: And I agree with my friend that the context for that holding in Padilla is important. [00:22:11] Speaker 00: I just happen to think it points away from the type of rule that he is proposing this court should adopt. [00:22:18] Speaker 00: And I would point the court in particular to the Second Circuit, the en banc Second Circuit's opinion last year in the Farhain case that's cited in the government's brief. [00:22:26] Speaker 00: And in that case, the Second Circuit cataloged the majority opinion in Padilla and noted that on five or six different occasions throughout the opinion, [00:22:35] Speaker 00: Padilla emphasized that it was talking about the risk of deportation. [00:22:39] Speaker 00: It wasn't speaking in terms of ultimate removal from the United States. [00:22:44] Speaker 00: It talks about eligibility for deportation, the possibility of deportation. [00:22:48] Speaker 00: That was the risk that Padilla was concerned needed to be conveyed to the client in that case. [00:22:54] Speaker 00: And Chief Judge Holmes, I do want to address the specific language that you cited from Padilla about the clear consequence and the need for the advice to be equally clear. [00:23:04] Speaker 00: That comes at page 369 of Padilla, and it follows the court's articulation of what the succinct, clear, and explicit consequence of Mr. Padilla's conviction was. [00:23:14] Speaker 00: And notably, the majority does not say that the clear consequence of Mr. Padilla's conviction is that he ultimately will be deported. [00:23:24] Speaker 00: And it doesn't say that his counsel erred because she failed to inform him that he would be deported. [00:23:30] Speaker 02: Well, the clear consequence was definitely more than you have a risk of deportation. [00:23:34] Speaker 02: He was presumptively, mandatorily deportable. [00:23:38] Speaker 02: And if you look at the statute, there's no risk. [00:23:40] Speaker 02: I mean, that's the way it is, right? [00:23:43] Speaker 00: Well, two responses to that, Your Honor. [00:23:45] Speaker 00: The statute uses the word deportable. [00:23:47] Speaker 00: The majority in Padilla at page 368, again, when it's talking about what the succinct, clear, and explicit consequence of his guilty plea was, they describe it as his eligibility for deportation. [00:24:00] Speaker 02: He didn't tell. [00:24:01] Speaker 02: Well, this lawyer told him you had a risk of deportation. [00:24:04] Speaker 02: He didn't even tell him you were deportable because if he had told him that what that would have told him is his DACA status was done. [00:24:12] Speaker 02: And then the question was whether he was actually going to leave the country that he didn't even tell him that he just said you have a risk of deportation. [00:24:21] Speaker 00: To be clear, Your Honor, I think what the record shows, and at this point all we have are the allegations in the 2255 motion, what Mr. Aguayo alleges is that he and his counsel read paragraph 2b of the plea agreement, which says in no uncertain terms, if you are not a United States citizen, you may be removed from the United States. [00:24:40] Speaker 00: That, I think, is fairly straightforward, as straightforward as the word deportable in the statute, which [00:24:46] Speaker 02: I think may is permissive. [00:24:49] Speaker 02: That doesn't say deportable means you enter into a different status. [00:24:55] Speaker 02: If you're in a DACA status, you're not deportable. [00:24:58] Speaker 02: If he had just said that, even though I don't think that Padilla necessarily meant that enough, [00:25:04] Speaker 02: But if he had said that, that would at least put him in a different situation. [00:25:07] Speaker 02: And what I note, Mr. Matheson, is if you look at what Judge Alito says when he joins, he even says that what was required is what this law requires in a succinct and straightforward fashion. [00:25:23] Speaker 02: What does this statute require in a succinct and clear fashion? [00:25:28] Speaker 00: It says you're deportable, right? [00:25:31] Speaker 00: It does, Your Honor, but I read Justice Alito's concurrence to be responding to what he described as a, quote, vague halfway holding in the majority opinion that is susceptible to these types of interpretations that the Ninth Circuit and the Fourth Circuit have adopted. [00:25:45] Speaker 00: But the Eighth Circuit has rejected him, that the Second Circuit in Farhain, at the very least, appears to be resistant towards that kind of a safe harbor words type of requirement. [00:25:54] Speaker 00: Again. [00:25:55] Speaker 02: So he's complaining about it. [00:25:56] Speaker 02: He's complaining about it, but he's acknowledging that's what they're holding. [00:26:02] Speaker 02: He doesn't like it, but that's what he says they're holding, right? [00:26:05] Speaker 00: I think he is expressing his concern with the way the holding could be misinterpreted, again, describing it as vague and a half measure, a halfway type of holding. [00:26:14] Speaker 00: But what Padilla actually says, the majority does not go so far. [00:26:17] Speaker 00: It says, we now hold that counsel must inform her client whether his guilty plea carries a risk of deportation. [00:26:24] Speaker 00: And that was the Strickland prong one error in Padilla. [00:26:28] Speaker 00: And again, as my friend points out, we don't have to speculate about how the Padilla majority would have addressed [00:26:33] Speaker 00: Mr. Aguayo's conviction is the same class of aggravated felony. [00:26:37] Speaker 00: And Padilla does not say that Mr. Padilla's counsel failed to meet the standard under Strickland and was objectively unreasonable because she failed to inform her client that it was virtually certain he was going to be deported. [00:26:51] Speaker 02: Or to use the word- I don't even want to use the virtually certain word. [00:26:54] Speaker 02: Let me ask two questions. [00:26:56] Speaker 02: Do you accept the premise that [00:26:59] Speaker 02: The clear, unambiguous language of what is it, 1227, would be that if you get a controlled substances conviction, you are subject to deportation. [00:27:11] Speaker 02: Not made, not risk, you're subject to deportation. [00:27:17] Speaker 00: Respectfully, Your Honor, I would say that the statute uses the word deportable and in so far as... Well, all right, let's go with the word deportable. [00:27:24] Speaker 02: Do you accept the premise, the statute says you're deportable if you have that conviction? [00:27:31] Speaker 00: Yes, you are subject to deportation. [00:27:33] Speaker 00: Okay. [00:27:33] Speaker 02: Well, is there a distinction between risk of deportation and you're deportable? [00:27:40] Speaker 02: I think [00:27:43] Speaker 00: that under Padilla, the concern under the Sixth Amendment is that risk sufficiently conveys to the client the possibility of removal from this country. [00:27:52] Speaker 02: But if Padilla calls for you to, you know, that passage that I alluded to before basically was designed to say, to respond, I think, to the dissent and saying, look, we're not requiring you to do anything complicated here. [00:28:08] Speaker 02: Immigration law is complicated. [00:28:10] Speaker 02: But if something on its face says A, [00:28:13] Speaker 02: and counsel can easily see A, then counsel has to tell their client A. And if, as I understand you, to accept the premise that this statute says if you get convicted of a controlled substance offense, you're deportable, why would the obligation under PDEA not to be to say not that you have a risk of deportation, not that you may be deported, but you're deportable? [00:28:39] Speaker 02: Why would that obligation not exist? [00:28:42] Speaker 00: Two responses to that, Your Honor. [00:28:44] Speaker 00: The first is that if Padilla wanted to impose a requirement, the council must parrot the language of the statute and use the word deportable. [00:28:52] Speaker 00: That is the only way to satisfy the Sixth Amendment and to discharge his or her duty. [00:28:58] Speaker 00: under the Strickland prong one, Padilla would have said that. [00:29:02] Speaker 00: Instead, when it says what it held, we now hold that. [00:29:04] Speaker 00: Council must inform her client whether his guilty plea carries a risk of deportation. [00:29:09] Speaker 00: They wouldn't have said that. [00:29:10] Speaker 00: The second point, Your Honor, is that it makes sense that Padilla would draw the line where it did. [00:29:15] Speaker 00: Ultimately, Padilla is an application of Strickland's performance prong. [00:29:19] Speaker 00: And under the court's sixth amendment jurisprudence, the question is not whether counsel used specific language from the statute. [00:29:26] Speaker 00: It's not whether counsel gave perfect advice or even best practices. [00:29:31] Speaker 00: The touchstone is always whether counsel's advice was objectively unreasonable. [00:29:35] Speaker 00: And I think under the circumstances presented here, where counsel reviewed the plain language of paragraph two B of the plea agreement, which states, if you are not a United States citizen, you may be removed from the United States [00:29:46] Speaker 00: the risk, whether the guilty plea carried a risk of deportation, that information was conveyed to the client. [00:29:52] Speaker 04: No, no, no. [00:29:54] Speaker 04: It was not conveyed. [00:29:57] Speaker 04: According to Mr. Guayamontes, he said, what does that mean? [00:30:03] Speaker 04: What does that sentence mean that is in my plea agreement? [00:30:07] Speaker 04: And what is in the record is that his counsel told him, I don't know. [00:30:11] Speaker 04: I don't know. [00:30:12] Speaker 04: I'm not an immigration attorney. [00:30:14] Speaker 04: You'll have to wait till you get to prison and then you can get your immigration attorney. [00:30:18] Speaker 04: That is not saying, oh, that just means what it says. [00:30:22] Speaker 04: You're at risk for deportation. [00:30:24] Speaker 04: It isn't even that much. [00:30:25] Speaker 04: It's misadvice. [00:30:27] Speaker 04: And what is that competent counsel to say? [00:30:30] Speaker 04: Yeah, I don't really know what that means. [00:30:32] Speaker 04: You'll have to wait. [00:30:33] Speaker 04: That is misadvice and misleading. [00:30:37] Speaker 04: And I just don't know where the record confirms what you're saying, that counsel said it means what it says, essentially. [00:30:47] Speaker 04: You did something worse than that. [00:30:49] Speaker 00: Your honor, I agree that if all that had happened below is Mr. Aguayo had gone to his attorney and said, what are the immigration consequences of my conviction here? [00:30:56] Speaker 00: And counsel had said, I don't know, don't worry about it. [00:30:59] Speaker 00: That would be a stronger case that counsel failed to convey the information that Padilla requires, which is whether his guilty plea carries a risk of deportation. [00:31:06] Speaker 00: Now, I understand the court's point. [00:31:08] Speaker 00: I do want to emphasize with my limited time, however, that even if counsel's advice fell below Strickland prong one, Mr. Aguayo cannot satisfy prejudice in this case. [00:31:21] Speaker 00: As this court has said time and again, Chief Judge Holmes, as you explained in Dominguez, Judge Morris, as you explained in the Rippey case, both are cited in the government's brief. [00:31:29] Speaker 00: The focus remains on the factual circumstances surrounding the plea and asks whether there's anything in the record [00:31:35] Speaker 00: that substantiates the appellants or the 2255 movements after the fact allegations about what he would have done, what he cared about, and why he would have insisted on going to trial. [00:31:46] Speaker 02: You're absolutely right. [00:31:49] Speaker 02: And I'm sorry to cut you off, but you're absolutely right. [00:31:51] Speaker 02: But why do we do that here? [00:31:52] Speaker 02: I mean, if there is deficient in performance, the district court did not reach the prejudice prong. [00:31:58] Speaker 02: And so why would that be an undertaking we would even attempt here? [00:32:02] Speaker 00: Because the record is sufficient to make that determination, and as this court has done time and again, it can decide the prejudice prong without addressing performance. [00:32:11] Speaker 00: And even if there's no evidentiary hearing below, I would cite the Gilchrist case, Saucido Avalos, and the Headley case that are all cited in the government's brief. [00:32:20] Speaker 00: More to the point, Your Honor. [00:32:22] Speaker 00: The record in terms of what can substantiate the defendant's after the fact allegations is not going to change as a result of remanding or any sort of... Why wouldn't it? [00:32:32] Speaker 02: Didn't they file... Did anybody get the Kramer file, Mr. Kramer's file? [00:32:37] Speaker 00: It was not available, Your Honor. [00:32:39] Speaker 02: And it's not available. [00:32:42] Speaker 02: Well, why couldn't it be available below? [00:32:46] Speaker 00: Your Honor, I can represent to the court that we're unaware if it exists. [00:32:51] Speaker 00: Setting that aside, however, [00:32:53] Speaker 00: The more important point, I think, is that the inquiry is largely objective. [00:32:57] Speaker 00: It looks at the objective evidence, and that is what is not going to change. [00:33:02] Speaker 00: The type of evidence that is lacking in Mr. Aguayo's case, I think, is best shown by comparing it to the types of cases where that evidence was present. [00:33:11] Speaker 00: Let me direct the court first to the Rodriguez Vega case, the Ninth Circuit case that my friend relies on under Strickland prong one. [00:33:19] Speaker 00: In that case, the court noted that the defendant had previously rejected a plea offer that contained a stipulated removal provision. [00:33:28] Speaker 00: That was evidence, the court noted, that substantiated what Rodriguez Vega was saying after the fact about what he cared about. [00:33:36] Speaker 00: There's nothing like that here. [00:33:37] Speaker 00: Or, for example, in Lee v. United States, as we pointed out in the brief, there the plea colloquy [00:33:42] Speaker 00: reinforced or supported what Mr. Lee was saying after the fact. [00:33:46] Speaker 00: And as this court pointed out in United States versus Reed, the most important evidence in making this prejudice inquiry is the strength of the government's case. [00:33:54] Speaker 00: And in this case, Mr. Aguayo doesn't allege that he was innocent, doesn't identify any plausible or viable defense to his charges, and doesn't even allege there was any infirmity or weakness in the government's proof against him. [00:34:05] Speaker 02: And so- What is worrisome about this, Mr. Matheson, is that [00:34:10] Speaker 02: The district court didn't tease any of this out. [00:34:14] Speaker 02: I mean, what we'd be doing is being called upon to do this on appeal and having to be, we would be betting that there wouldn't be anything else found below. [00:34:25] Speaker 02: I agree with you that it's an objective standard. [00:34:27] Speaker 02: I mean, well, the law is the law. [00:34:28] Speaker 02: It is an objective standard. [00:34:30] Speaker 02: But how are we situated to be able to know? [00:34:33] Speaker 02: I mean, I don't know what could be found below in a hearing. [00:34:39] Speaker 00: Let me give the court two responses. [00:34:41] Speaker 00: I see I'm out of time. [00:34:42] Speaker 00: The first is that this court has addressed prejudice under these circumstances before in the Gomez-Lugo case that's cited in the government's brief. [00:34:50] Speaker 00: That was actually a direct appeal of an ineffective assistance claim based on a PDIA violation. [00:34:55] Speaker 00: This court determined that the record was sufficient to deny the claim on prejudice grounds. [00:35:00] Speaker 00: Secondly, and I think more importantly, again, the two most important sources of evidence that this court looks to, [00:35:07] Speaker 00: contemporaneous with the plea. [00:35:10] Speaker 00: What happened at the plea colloquy, that's what Lee versus United States teaches, and the strength of the government's case. [00:35:16] Speaker 00: That's what Dominguez and Rippey and Hurd versus Addison require. [00:35:22] Speaker 00: Those two sources of evidence are not going to change on a remand for an evidentiary hearing. [00:35:28] Speaker 00: because we know what happened at the plea colloquy and we know that Mr. Aguayo does not even allege any weakness in the government's case. [00:35:34] Speaker 04: Let me interrupt you because what happened at the plea colloquy here is very instrumental in terms of what happened as he agreed to this plea agreement where he had been misinformed about what the meaning of it was. [00:35:49] Speaker 04: So, I mean, I don't know that [00:35:51] Speaker 04: Any court looking at this now could necessarily rely on that plea agreement. [00:35:57] Speaker 04: I guess what you're not taking into account here is what the court said in Lee. [00:36:00] Speaker 04: I don't think that was restricted to the facts of Lee, which is there are many cases like this where a defendant facing deportation would much rather reject any plea agreement, any plea agreement, in favor of a hailman because they want to stay here. [00:36:16] Speaker 04: This was a decades, been here since he was a child. [00:36:21] Speaker 04: And we don't know. [00:36:23] Speaker 04: We don't know what this report might be with these facts. [00:36:29] Speaker 04: I don't understand why we wouldn't give it back to you. [00:36:33] Speaker 00: Because, Your Honor, I think that that gets the analysis that Lee requires backwards, which is the question is, what does the plea colloquy show to substantiate the allegations? [00:36:46] Speaker 00: And in Lee, when the district judge asked Mr. Lee, how did the immigration consequences of your conviction or how does that affect your decision to plead guilty today? [00:36:54] Speaker 00: Mr. Lee said, I don't understand. [00:36:57] Speaker 00: And it was only after his counsel came over and assured him this is just a boilerplate type of warning that he was willing to plead guilty. [00:37:03] Speaker 00: And so the court said that is the type of evidence that supports the after the fact assertions and leaves room for doubting his plea and his testimony under oath that he wanted to plead guilty [00:37:16] Speaker 00: notwithstanding or with an understanding of the immigration consequences. [00:37:20] Speaker 00: And here, looking at the plea colloquy, there's an absence of substantiation. [00:37:24] Speaker 00: There's nothing in there like the exchange in Lee or like the objective evidence in Rodriguez Vega, or even in the Fourth Circuit case in Swabie, where the defendant at least alleged, I would have contested the estimated loss amount for my counterfeiting conviction if I had different advice of counsel about the immigration consequences. [00:37:44] Speaker 00: And the court said, that's the type of argument that at least needs to be made. [00:37:48] Speaker 00: And it would be objectively rational for a defendant to challenge that type of conviction on that particular element. [00:37:55] Speaker 00: Mr. McVeigh does not even allege that. [00:37:57] Speaker 00: And so I don't think that there's any reason to remand for something that he's not even asserting. [00:38:04] Speaker 02: Thank you, counsel. [00:38:07] Speaker 02: Thank you, Your Honor. [00:38:08] Speaker 02: Mr. McVeigh, I was going to end this, but since [00:38:14] Speaker 02: Mr. Matheson, we did it, my fault, but since he's gone over, why don't we go for a minute and a half if you want it? [00:38:21] Speaker 02: You don't need to take it, but if you want it, take it. [00:38:23] Speaker 01: Well, certainly if the court has any questions, I just maybe, because you've asked about it a lot, Judge Holmes, one of the ironies that I see in the government's argument today is that it seems to be the government that is actually pushing us towards a quantitative risk assessment. [00:38:40] Speaker 01: Because the government, I think, has essentially conceded the rule of Padilla. [00:38:47] Speaker 01: The conviction here rendered him deportable. [00:38:50] Speaker 01: And they want to say, well, it doesn't really matter because there were these defenses that could have been available. [00:38:55] Speaker 01: So we can't really say that it was automatic. [00:38:59] Speaker 01: I don't think the court needs to go there. [00:39:01] Speaker 01: I think the court could. [00:39:02] Speaker 01: The Ninth Circuit did. [00:39:04] Speaker 01: I expect more of defense attorneys, but I think under Padilla, it's clear that I think this case is indistinguishable from Padilla. [00:39:14] Speaker 01: This is a drug trafficking conviction, just like Padilla. [00:39:18] Speaker 01: And Padilla tells us the duty of counsel. [00:39:21] Speaker 01: When there's a drug trafficking conviction, you have to tell them that deportation is automatic. [00:39:29] Speaker 01: I think that, again, looking at the Eighth Circuit case, I think the court can meaningfully distinguish between aggravated felony cases and crimes involving moral turpitude. [00:39:42] Speaker 01: I'm not in a position to hazard a guess on CIMTs, but ag felonies, it's a list. [00:39:49] Speaker 01: It takes some work, but that is exactly what the lawyers are expected to do. [00:39:56] Speaker 01: On prejudice, I think you've got the point. [00:39:58] Speaker 01: There are no factual findings here. [00:40:02] Speaker 02: What is the story on the Kramer file? [00:40:05] Speaker 02: What's your view on that? [00:40:06] Speaker 02: Is it obtainable? [00:40:08] Speaker 01: So yes, we have it. [00:40:11] Speaker 01: We just haven't had the chance to get to discovery. [00:40:14] Speaker 01: And so we're happy to produce it if we get to that point. [00:40:17] Speaker 01: But I've got it. [00:40:19] Speaker 01: And he was alive when we filed this. [00:40:22] Speaker 01: But there are many issues. [00:40:23] Speaker 01: There's credibility determinations. [00:40:25] Speaker 01: There are factual determinations. [00:40:27] Speaker 01: There may be more to come out about what Kramer actually said or didn't do. [00:40:32] Speaker 01: His files may have something, so it's not a done deal. [00:40:36] Speaker 01: What Lee importantly tells us that this court can't do is to find as a matter of law, which is what the government essentially wants you to do, you can't find as a matter of law that the petitioner's assertion that he would not have gone to trial [00:40:53] Speaker 01: had he known, had he been correctly advised, you can't find as a matter of law that that's an irrational position and therefore unacceptable. [00:41:02] Speaker 01: We have to have an evidentiary hearing on the second prong. [00:41:05] Speaker 01: Right. [00:41:06] Speaker 01: Case is submitted. [00:41:06] Speaker 01: Thank you for replying. [00:41:07] Speaker 01: Arguments counsel.