[00:00:03] Speaker 04:
Case number 15-3009, United States of America versus Carrie Newman, appellant.

[00:00:08] Speaker 04:
Mr. Latimer for the appellant, Mr. Card for the appellee.

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May it please the court?

[00:00:23] Speaker 03:
Good morning.

[00:00:23] Speaker 03:
Good morning.

[00:00:24] Speaker 03:
My name is Ryan Latimore.

[00:00:26] Speaker 03:
I represent the appellate defendant, Kerry Newman, on appeal from the district court based upon his denial of a writ of error quorum nobis by that court.

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We're arguing that the district court abuses discretion when it failed to find ineffective assistance of counsel, which had also prejudiced the appellant and therefore a fundamental error justifying quorum nobis relief.

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We're arguing specifically that former counsel was ineffective based upon his violation of his duty to mitigate harm under the plea agreement under Glover v. United States 531 U.S.

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198-2001 and ineffective due to a deficient plea bargain under a duty to negotiate an effective plea bargain under Laffer v. Cooper.

[00:01:16] Speaker 04:
I don't understand how you can have a duty to negotiate an effective plea bargain.

[00:01:25] Speaker 04:
I'm sorry, I don't understand how you can have a duty to negotiate an effective plea bargain.

[00:01:30] Speaker 03:
We're arguing that under the Sixth Amendment, counsel, after Laffer v. Cooper, does have a duty to negotiate an effective plea bargain.

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How can you have a duty to do something you may not be able to do?

[00:01:46] Speaker 04:
Well, I believe it is within the scope of council under the Sixth Amendment to you can bargain, but you cannot guarantee your client that you're going to get him what he's going to consider an effective plea.

[00:01:58] Speaker 03:
That's correct.

[00:01:59] Speaker 03:
That's correct.

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I've been on both sides of the bargain long time before I came on this court for a long time, but they're like any other negotiation.

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You can't have a duty based on what the result has to be.

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That just doesn't make sense.

[00:02:11] Speaker 03:
Well, in this specific situation, there was something that was very important to the appellant, which was not considered at all.

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So at least there would be a duty to take that into consideration when negotiating the plea.

[00:02:23] Speaker 04:
Wasn't he told in open court by the judge that he might be deported and excluded based on the plea?

[00:02:32] Speaker 03:
He was told by the judge that he might face deportation based upon his plea agreement.

[00:02:36] Speaker 03:
That is correct.

[00:02:37] Speaker 04:
Thank you.

[00:02:39] Speaker 00:
Let me go back to your argument about prejudice and ask you this.

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Given the Supreme Court's decision in Chated, you can't rely on counsel's failure to advise, right?

[00:03:02] Speaker 00:
You can only, isn't that right?

[00:03:05] Speaker 03:
I'm sorry, Your Honor, could you repeat that?

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Given the Supreme Court's decisions, you can't, since this is post-pedia, you can't rely on counsel's failure to advise about the immigration consequences of pleading guilty, right?

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That is, that is correct.

[00:03:25] Speaker 00:
So, go ahead, finish your sentence.

[00:03:27] Speaker 03:
I was just going to say, you cannot rely on

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counsel's failure to advise.

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Correct.

[00:03:34] Speaker 00:
You can only rely on counsel's inaccurate advice at the plea, at the sentencing, right?

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Isn't that right?

[00:03:48] Speaker 03:
Are you talking about our case specifically, Your Honor?

[00:03:51] Speaker 00:
Yeah, your case.

[00:03:51] Speaker 03:
Okay.

[00:03:52] Speaker 00:
He inaccurately advised Mr. Newman at sentencing.

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There's no question about that.

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Okay.

[00:04:00] Speaker 00:
So then isn't the prejudice question we have to ask is what would have happened had counsel remained silent?

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In other words, not said anything.

[00:04:12] Speaker 03:
Which are you talking about at the plea?

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Yeah.

[00:04:16] Speaker 00:
No, at the sentencing.

[00:04:18] Speaker 00:
Yeah.

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In other words, if counsel, instead of saying, giving bad advice, had remained silent, the question then is, OK, let's assume he did.

[00:04:30] Speaker 00:
What's the prejudice here?

[00:04:33] Speaker 03:
OK.

[00:04:34] Speaker 00:
And your argument is, well, he might have gone to trial, correct?

[00:04:41] Speaker 03:
I think our better argument is that he would have sought to negotiate a different plea agreement.

[00:04:48] Speaker 00:
What evidence in the record is there of that?

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What's your best evidence that he would have negotiated a different plea?

[00:04:57] Speaker 03:
Sure.

[00:04:58] Speaker 03:
His substantial assistance to the government, prosecuting numerous other individuals over a long period of time, which was mentioned in the sentencing transcript.

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And I don't remember if it was a probation officer or someone else involved with the prosecution spoke on his behalf to his extraordinary efforts in helping prosecute others.

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I mean, that would be factual evidence that there would be a possibility that he could leverage that into some sort of alternate plea.

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I've seen it happen.

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Even though, as Judge Santel said, he pled, knowing that the judge could have sentenced him, even under the bad advice, to a sentence that would have had immigration consequences.

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In other words, he accepted that risk.

[00:05:51] Speaker 03:
At what stage, Your Honor?

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at the sentencing.

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I don't understand the question, sir.

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You say he could have withdrawn his plea, right?

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I negotiated a different... I was using the evidence of his extensive cooperation to make an argument that

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So at that point, I guess, in reality, yes, the former plea would have had to be vacated.

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He would have had to negotiate a new plea, or he could have never entered the plea in the first place, cooperated and rendered the play in the first place, though.

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Is there anything in the record that indicates that you would have gotten a negotiated plea as opposed to having to go to trial and probably getting a good deal worse than you got?

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Are you?

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Is there anything in the record?

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Anything in the record?

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It says that if he had succeeded in withdrawing that plea or refusing to enter that negotiated plea, then he could have gotten another negotiated plea.

[00:07:01] Speaker 04:
I mean, very often it doesn't happen very often that a defendant does back up and play, but usually when he does, uh, it goes to trial and he then he gets convicted most likely, and then he gets worse than he got in this deal.

[00:07:16] Speaker 04:
Why shouldn't we assume that this is going to be contra norm and have a different result than would happen in most cases?

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Because taking the facts of the case from the sentencing and how important getting a plea and sentence was to him that would protect him.

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It was so important that he did enter this plea and did stand by it even with the judge advising him that he might be deported.

[00:07:44] Speaker 04:
Well, I mean, so important, but yet he did exactly what he did.

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He was.

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I'm sorry.

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I talked spoke over.

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I apologize.

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He was relying on his counsel to negotiate an effective plea agreement that was going to protect the things that counsel knew was important to him, knowing that he was not a citizen of the United States told him in open court on the record.

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He made me before his attorney and the press attorney all there all

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singing amen to do it.

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How can you possibly say that this was so important to him that he would back out back out of the play if he'd gotten different because the the council at the time relied on the sentence as the prime factor as to whether

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any immigration or deportation consequences were going to attach to the criminal conviction.

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That was an incorrect assumption and incorrect advice if you would have affirmatively given that advice.

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That takes you back to what Judge Taylor was asking you about the difference between bad advice and silence.

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If you'd been silent, you wouldn't have anything at all, would you?

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So – and we know that former counsel was silenced to a certain point.

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Yeah.

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So what we're arguing is that former counsel still had a duty to negotiate an effective plea.

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And part of negotiating an effective plea, when the most important thing to your client is remaining in the United States with their mother, father, kid, four brothers, three sisters, is to

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enter into a plea and eventually be sentenced to something that at least they'll have a defense and immigration court to.

[00:09:32] Speaker 04:
Unfortunately, former counsel... Do you have any knowledge of any case similarly situated to this in which there has been a plea that has accomplished what you're asking for here?

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From my position, or vacating?

[00:09:48] Speaker 04:
In this district.

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I've had a case where an individual pled guilty, assisted the government, the conviction was vacated, and he pled to a crime that was not going to have immigration consequences.

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And he faced no immigration consequences and became a citizen two or three weeks ago.

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So I know it's possible.

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It is possible, at least in some cases.

[00:10:08] Speaker 02:
Can I ask you something separate?

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You're filed for a writ of quorum nobis.

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If that were granted, what would happen?

[00:10:18] Speaker 03:
The plea would be vacated and it would be up... I'm sorry.

[00:10:21] Speaker 02:
The conviction would be vacated.

[00:10:22] Speaker 03:
The conviction would be vacated and it would be up to the prosecution.

[00:10:26] Speaker 02:
He's not in the country anymore.

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He's in Jamaica.

[00:10:29] Speaker 02:
So how on earth can that give him any... If what he wants is relief from the deportation and he's already been deported, this writ has no ability to give him any meaningful relief whatsoever.

[00:10:43] Speaker 03:
I don't understand.

[00:10:45] Speaker 03:
If the conviction is vacated, we can seek to reopen the immigration court case before the immigration court in Arlington based upon a conviction that's vacated on a procedural or substantive defect, not just for immigration purposes.

[00:10:59] Speaker 03:
he would be able to come back in the country and go before the immigration judge again and be prosecuted if he... No, I mean, it's not like... I'm assuming the U.S.

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Attorney's Office wouldn't just drop the case.

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He's going to be... I guess they would have to decide... You have to show somehow that this is going to give you relief.

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And if they're going to prosecute you and you'll be convicted... your client would be convicted again, then he's going to be in the exact same boat that he is now.

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And even if you were to negotiate a plea,

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that wouldn't have immigration consequences.

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I'm not sure what it would be for this offense.

[00:11:32] Speaker 02:
But this writ does nothing to bring him back into the country.

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This is a civil case now, not a criminal case.

[00:11:40] Speaker 02:
The writ of quorum nobis for these purposes, right?

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He's done with his sentence.

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So the vacant and the conviction does nothing to bring him back into this country.

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We can't order that he be brought back into this country.

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That's a separate administrative process that is 100% available to him if he has no longer been convicted of this crime.

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There's no question about that.

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Right, but would the immigration people have to ignore

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all the behavior that he admitted to and cooperated with.

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I mean, the fact that he engaged in the behavior that warranted deportation is undisputed.

[00:12:11] Speaker 03:
Okay, very good question.

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So the behavior that he engaged in would probably form the basis for a ground of inadmissibility

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and a waiver admitting to the essential elements of a crime involving moral turpitude, and a waiver is available through immigration for that ground of inadmissibility, whereas there is no waiver or defense available based upon his aggravated felony conviction back then.

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Some things have changed in various courts of appeals where

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Today, he might even be able to apply for a waiver, depending on how he enters the country and the jurisdiction.

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Has he tried to apply?

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If you can have a waiver of this concern about the conviction or engaging in the conduct, conviction or not,

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has he tried that already no so the process the conviction would have to be vacated and then he could that would allow him to go back to immigration at that point and you would have to go through the immigration process only at that point would he be able to apply for relief affirmative relief apply for a waiver or

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whatever else would be available to him at that point.

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So the conviction as an individual deported after being convicted of an aggravated felony, he's barred for life from returning to the United States, he faces criminal prosecution if he did return to the United States, and there isn't a waiver available to him in that position from an immigration standpoint.

[00:13:41] Speaker 02:
And given that the crime in which he engaged was fraud just by definition, so any way you look at it, it's a crime of moral perpetuity.

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That's correct.

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Is there any basis for thinking that there is something that you could plead to that wouldn't involve fraud?

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Were there other counts or other discussions on the table?

[00:14:01] Speaker 02:
What would you plead to here that wouldn't involve fraud if that's what it was?

[00:14:04] Speaker 03:
I was going to suggest 18 USC, section 1001, simple misstatement to a federal official.

[00:14:11] Speaker 03:
That's something I've used in the past where different, once again based on the court of appeals precedent in different areas, that may not be considered, it's not considered an aggravated felony, it may not be considered a crime involving moral turpitude either depending on the jurisdiction.

[00:14:28] Speaker 03:
So that's something specifically that I've used in the past

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Do we have law on whether there's a 1001 violation of the crime of moral turpitude?

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Do we have circuit law on that?

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To be quite honest with you, I don't know that off the top of my head.

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If you do, then you couldn't get the waiver anyway, if you pleaded 1001.

[00:14:47] Speaker 03:
As long as it's not an aggravated felony, as long as it's a crime involving moral turpitude, there is a waiver available for that.

[00:14:55] Speaker 02:
So you have to get rid of...

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the aggravated felony aspect.

[00:14:59] Speaker 03:
Yeah, exactly.

[00:15:00] Speaker 03:
I mean, that is him being deported after being convicted of an aggravated felony is the issue.

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If that aggravated felony conviction no longer exists and the conviction was vacated based upon, in this case, a procedural defect or a substantive defect, but not just for immigration purposes, then immigration no longer recognizes that as a conviction.

[00:15:25] Speaker 03:
So he has no longer been

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convicted of an aggravated felony and then deported.

[00:15:30] Speaker 03:
It sort of rewinds.

[00:15:32] Speaker 03:
At that point, it does get very complicated getting him back into the country.

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You have to work with ICE and CBP.

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But it has been done before.

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I mean, it's not like a pipe dream.

[00:15:44] Speaker 02:
It's been done before, even when there is

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as a matter of public record colloquy in which he admits to engaging in crimes of moral turpitude.

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Because that's just a matter of public record that's out there, what he admitted to.

[00:15:58] Speaker 03:
That's correct.

[00:15:58] Speaker 03:
So that falls under a separate ground of inadmissibility, which is admitting the essential elements of a crime involving moral turpitude.

[00:16:06] Speaker 03:
It's no longer an aggravated felony, and it's no longer a conviction for immigration purposes.

[00:16:10] Speaker 03:
So all of those modifiers change your position based upon

[00:16:16] Speaker 02:
whether... But he also will have admitted at open court to an aggravated felony, even if he's not convicted of it, right?

[00:16:24] Speaker 03:
That's fine as long as it was vacated.

[00:16:26] Speaker 00:
Okay, thank you.

[00:16:30] Speaker 00:
We're here for the government.

[00:16:42] Speaker 01:
May it please the Court, Stephen Ricard, on behalf of the United States.

[00:16:46] Speaker 01:
There was no abusive discretion in Judge Friedman's order denying the petition for the extraordinary writ of quorum nobis.

[00:16:53] Speaker 01:
Appellant has failed to meet his burden of showing an heir of the most fundamental character that's tantamount to a miscarriage of justice.

[00:17:00] Speaker 01:
He's not even shown ineffective assistance of counsel.

[00:17:04] Speaker 00:
But you only argue prejudice here, right?

[00:17:07] Speaker 00:
Your brief focuses completely on prejudice.

[00:17:10] Speaker 01:
I don't think that's right.

[00:17:11] Speaker 01:
I don't quite agree.

[00:17:12] Speaker 01:
I think that we break it up just as your honor broke it up in your questions to Appellants' Council about the two different alleged acts or omissions.

[00:17:21] Speaker 01:
And the first alleged omission is the alleged failure to provide any information prior to the plea.

[00:17:26] Speaker 01:
And I think our brief says that that can't be deficient performance because Padilla is not retroactive.

[00:17:32] Speaker 00:
Well, what about his inaccurate advice he gave later?

[00:17:43] Speaker 00:
You know, I didn't see you arguing that that wasn't a basis for ineffective assistance charge.

[00:17:49] Speaker 00:
You argue there's no prejudice.

[00:17:50] Speaker 01:
That's correct.

[00:17:51] Speaker 01:
As to the second act.

[00:17:53] Speaker 01:
I do want to make one factual clarification.

[00:17:54] Speaker 00:
I was right.

[00:17:55] Speaker 00:
On the only issue that he could raise here, post Padilla and whatever that other case is.

[00:18:03] Speaker 00:
Thank you, Chad.

[00:18:07] Speaker 00:
the only issue he could raise here, namely that he was, that the advice was inaccurate, the government's argument is there's no prejudice, correct?

[00:18:15] Speaker 01:
That's correct.

[00:18:16] Speaker 01:
I wasn't sure you agreed that that was the only argument he could raise, so I wanted to make sure I addressed it.

[00:18:20] Speaker 00:
I understand.

[00:18:21] Speaker 00:
That's fine.

[00:18:22] Speaker 00:
Okay, now we've got that.

[00:18:23] Speaker 00:
Okay, now, do you agree with me that one of the, on that, at that point, the district, on that issue, the district court said there was no prejudice because he had already pled guilty.

[00:18:34] Speaker 01:
That's correct.

[00:18:35] Speaker 00:
But that's wrong, right?

[00:18:37] Speaker 00:
He could have withdrawn his plea.

[00:18:38] Speaker 01:
He doesn't have a right to withdraw his plea.

[00:18:41] Speaker 00:
But he can withdraw it for any fair and just reason.

[00:18:43] Speaker 01:
I think that he would have to have some show, and there's a multi-pronged test that has to go on.

[00:18:47] Speaker 00:
But then how can there be, how can it be, I mean maybe,

[00:18:51] Speaker 00:
Maybe you have an argument that even if there wasn't inaccurate advice, there's no prejudice, but it can't be that there's no prejudice because he's pled guilty.

[00:19:02] Speaker 00:
That's not right, because he does have a right to withdraw under certain circumstances the plea, correct?

[00:19:10] Speaker 01:
where there's a timely request to withdraw an error in rule 11 colloquially and an assertion of innocence.

[00:19:16] Speaker 01:
Yeah.

[00:19:16] Speaker 01:
And there's none of those here.

[00:19:17] Speaker 00:
Of course there isn't.

[00:19:18] Speaker 00:
But the question we have to ask is, assuming at the sentencing, the counsel had not said anything, as opposed to giving false advice, right?

[00:19:32] Speaker 00:
Is there prejudice?

[00:19:33] Speaker 00:
And the district court said no, because he'd pled guilty.

[00:19:35] Speaker 00:
But we just don't know, do we?

[00:19:38] Speaker 01:
I think that the record shows that given that he was warned at the plea hearing and that his affidavit establishes that he was given no advice at the plea hearing and that he went forward with his plea, that the record strongly supports that he would not- Okay, that's your argument about no prejudice.

[00:19:51] Speaker 00:
That I got.

[00:19:52] Speaker 01:
Okay.

[00:19:53] Speaker 01:
And I'm not quarreling with deficient performance since we are focusing on prejudice, but because we keep coming at false advice at sentencing, I did just want to note in reading the sentencing transcript

[00:20:02] Speaker 01:
The language used does not amount to assurance that there would be no ICE consequences.

[00:20:07] Speaker 01:
It says both the prosecutor and the defense attorney said words to the effect that if the sentence was greater than the year and the day, there could be increased ICE attention or it could draw it to a higher level with ICE.

[00:20:17] Speaker 01:
So I don't think there was ever an assurance that he would not be deported as counsel has characterized it.

[00:20:21] Speaker 01:
We agree that the actual sentence imposed does not matter in terms of making him an aggravated felon.

[00:20:28] Speaker 01:
some element of incorrectness there, but I think to call it an assurance at Senate is not an accurate point.

[00:20:36] Speaker 02:
You're downplaying this a lot.

[00:20:37] Speaker 02:
I mean, the prosecutor was there saying, this is going to make a difference, whether it's more or less than here.

[00:20:42] Speaker 02:
This is going to make a material difference.

[00:20:44] Speaker 02:
And then the defense attorney repeated that to his client.

[00:20:47] Speaker 02:
And the court jumped on the bandwagon as well.

[00:20:50] Speaker 02:
I think you're downplaying significantly what the impact of that would have been on Mr. Newman standing there and deciding whether to go forward with his plea.

[00:21:00] Speaker 01:
Well, he's not deciding whether to go forward with his plea, and that's my prejudice argument.

[00:21:03] Speaker 01:
It's at sentencing.

[00:21:05] Speaker 01:
No, no, he could have.

[00:21:07] Speaker 02:
If his attorney had turned to him and said, I totally messed up, in fact, this plea, whatever the sentence, the US attorney's wrong, whatever the sentence, you are at immigration hot water right now.

[00:21:19] Speaker 02:
You are at real risk.

[00:21:20] Speaker 02:
right now based on the plea, but it's not too late.

[00:21:24] Speaker 02:
You can ask the court to withdraw the plea before sentence is imposed.

[00:21:28] Speaker 02:
The rules allow that.

[00:21:30] Speaker 02:
How do we know that Mr. Newman wouldn't have said, heck yes, let's get out of this plea and let's negotiate something that will keep me in the country with my family?

[00:21:36] Speaker 02:
That's our prejudice question.

[00:21:38] Speaker 01:
I'll go back to the answer I gave before I went down the other path, which was that we know that from the plea proceeding where he was in fact advised of the potential for immigration consequences and where his affidavit... No, but his attorney may have already told him it's all going to turn on the sentence.

[00:21:53] Speaker 01:
As on the record that we have in his affidavit at page two to three, he says that when the judge warned him, quote, this was the first time this was ever brought to my attention.

[00:22:01] Speaker 01:
And even then, my attorney did not advise me to change my plea offer or offer any advice regarding my immigration status.

[00:22:07] Speaker 01:
So even his affidavit, which I think is what the judge proceeded on without a hearing below, makes clear that he was not given any.

[00:22:15] Speaker 02:
Well, why does it matter?

[00:22:16] Speaker 02:
Because as long as he received affirmative misrepresentations before he entered his plea,

[00:22:24] Speaker 02:
Once he got the bad advice, right, there was a distinct material difference in attorney misconduct or attorney deficiency in making affirmatively wrongful misrepresentations about immigration conduct.

[00:22:40] Speaker 02:
And if he does it before he has a chance to change his mind,

[00:22:44] Speaker 02:
I just don't know how we know that he wouldn't have changed his mind.

[00:22:46] Speaker 02:
Had he gotten truthful advice rather than bad advice, wrong advice?

[00:22:51] Speaker 01:
Because at the point of the plea, he had been told that there may be immigration consequences by the judge, according to his own affidavit.

[00:22:56] Speaker 02:
Maybe, I'm not sure.

[00:22:57] Speaker 02:
I don't know.

[00:22:57] Speaker 02:
I'm just raising that.

[00:22:58] Speaker 01:
According to his own affidavit, his attorney had given him no advice at that point, and he proceeded

[00:23:04] Speaker 01:
was in his best interest and remains a plea that... Well, that's your opinion that it's his best interest.

[00:23:10] Speaker 02:
I think we're hearing from Mr. Newman that he'd rather, if he didn't know him, that he would have done a whole different thing.

[00:23:15] Speaker 02:
Maybe he would have just said, fine, I'm just going to have to go to trial.

[00:23:18] Speaker 02:
I cannot walk into something that takes me away from my family.

[00:23:21] Speaker 01:
And how do we know what the outcome would have been?

[00:23:25] Speaker 01:
Well, he has the burden, and Padilla itself makes clear that he has to show not only that he would have withdrawn his plea, but that withdrawing his plea, or that he would not have pled, but that doing so would be a rational choice.

[00:23:36] Speaker 02:
Wait, where does he have to show it would be a rational choice?

[00:23:39] Speaker 01:
But he says that.

[00:23:43] Speaker 01:
Part of showing prejudice is showing that he would not have taken his plea, and part of showing that, which this court's own precedent has not recognized before, is also evaluating the evidence against him and whether that's such a decision.

[00:23:53] Speaker 04:
In all my faith to ask this, what makes a felony an aggravating felony?

[00:23:57] Speaker 04:
Why is 1001 not an aggravating felony and this is an aggravating felony?

[00:24:01] Speaker 01:
I think there's about 15 different subparts.

[00:24:04] Speaker 01:
Appellant's counsel could probably be more well versed in it than I. One of the subparts is a fraud where the loss is in excess of $10,000.

[00:24:15] Speaker 01:
And that brings me, I think, to a point.

[00:24:16] Speaker 01:
Your Honor, Judge Millett's question suggests about what the government would do and what the government's interests are here.

[00:24:21] Speaker 01:
There's another collateral, or not collateral, but direct consequence of a felon's plea, which is that he has to give back the $224,000 that he defrauded from the housing and urban development.

[00:24:31] Speaker 01:
And that's a requirement that was imposed on him, and restitution was ordered as a result of his plea.

[00:24:35] Speaker 01:
And I don't think that that's something the government would bargain away, given that it's $224,000 of the government's money.

[00:24:41] Speaker 01:
I'm not sure what that's got to do with... It puts it above the $10,000 threshold for fraud, so I don't think there's any chance that we would agree to a fraud less than $10,000.

[00:24:49] Speaker 00:
You know, listening to this argument makes me wonder why we shouldn't do what we normally do in a direct appeal.

[00:24:57] Speaker 00:
And since one way to look at this is since the record doesn't conclusively show one way or the other, doesn't conclusively answer the question one way or the other about prejudice, we should just send it back to the district court.

[00:25:11] Speaker 00:
I mean, after all, the district judge here, first of all, he denied the motion reluctantly.

[00:25:17] Speaker 00:
That's what he said.

[00:25:19] Speaker 00:
And he observed all of this and he's in a far better position than we are to decide to make the prejudice judgment.

[00:25:28] Speaker 00:
And if the district judge knew that he couldn't

[00:25:34] Speaker 00:
he couldn't hold that there was no prejudice simply because the defendant had pled, he might well look at the record differently.

[00:25:41] Speaker 00:
So why shouldn't we just send it back to him?

[00:25:43] Speaker 01:
There was no error in his ruling that there was no prejudice because at the moment of sentencing, even assuming misadvice at the moment of sentencing, that that influenced his decision to plead.

[00:25:53] Speaker 01:
He made a decision to plead that was entirely consistent.

[00:25:55] Speaker 00:
But you're resisting my question.

[00:25:57] Speaker 00:
I'm saying if I'm uncertain about that, if it's not conclusive,

[00:26:03] Speaker 00:
That's the standard we use in a direct appeal.

[00:26:06] Speaker 00:
And that's also the habeas standard.

[00:26:07] Speaker 00:
I don't know what it is for core notes.

[00:26:09] Speaker 00:
I assume it's the same as habeas.

[00:26:12] Speaker 00:
If it isn't conclusive one way or the other, why not just let the district judge who saw all this make an independent judgment of our prejudice?

[00:26:20] Speaker 00:
Isn't that the best way to resolve this?

[00:26:22] Speaker 00:
Particularly since, as I said, he denied it reluctantly.

[00:26:26] Speaker 01:
He denied it reluctantly, but found that there was no showing of prejudice.

[00:26:29] Speaker 00:
There was no... He found there was no prejudice based on a statement that he had already pled guilty, and that's not accurate.

[00:26:36] Speaker 01:
I just disagree with that character.

[00:26:38] Speaker 00:
Okay, suppose you're wrong about that.

[00:26:41] Speaker 00:
Suppose you're not right.

[00:26:42] Speaker 00:
Suppose we think that that was not a proper basis for finding no prejudice.

[00:26:48] Speaker 00:
Then would you agree that we should remand this to the district court?

[00:26:51] Speaker 01:
No.

[00:26:51] Speaker 01:
Appellant had the burden of showing prejudice to get the extraordinary petition.

[00:26:55] Speaker 01:
The argument that Your Honor has advanced that he could have filed a Rule 32 motion to withdraw the plea isn't one he made below or on appeal.

[00:27:01] Speaker 01:
And he can't meet the showing for that relief.

[00:27:04] Speaker 01:
He couldn't have at the time of sentencing, and he can't now.

[00:27:07] Speaker 00:
No.

[00:27:08] Speaker 00:
No?

[00:27:09] Speaker 00:
OK, thank you.

[00:27:10] Speaker 00:
Did counsel keys of all sign?

[00:27:14] Speaker 00:
OK, you can take two minutes if you would like it.

[00:27:20] Speaker 00:
What do you think about this idea of sending it back to the district court?

[00:27:24] Speaker 03:
Sounds good to me.

[00:27:27] Speaker 04:
I thought you'd get his vote.

[00:27:30] Speaker 03:
Sir, did you have a question that you wanted to... Yeah.

[00:27:33] Speaker 04:
Why would a thousand and one not be treated as a crime of moral turpitude under the record of this case?

[00:27:40] Speaker 03:
Because in many jurisdictions, a simple false statement has been found not to be

[00:27:47] Speaker 03:
a crime involving moral turpitude.

[00:27:48] Speaker 03:
And crime involving moral turpitude is a very fluid thing that's always changing based upon Board of Immigration Appeals precedent, U.S.

[00:27:54] Speaker 03:
Court of Appeals precedent.

[00:27:56] Speaker 03:
And we have no precedent on 1,001 after that, right?

[00:28:00] Speaker 03:
I can't answer that one way, Your Honor.

[00:28:02] Speaker 03:
One way or the other, Your Honor, I apologize.

[00:28:04] Speaker 04:
We really can't know whether this would be treated as a crime of moral turpitude, even if he changed the 1,001 belief.

[00:28:10] Speaker 03:
Well, that was my point earlier, was that if it is treated as a crime involving moral turpitude,

[00:28:15] Speaker 03:
If the aggravated felony conviction is vacated, and that it would no longer be recognized for immigration purposes at that point.

[00:28:23] Speaker 03:
So if he does plead guilty to a crime involving moral interpret, not an aggravated felony, he would have immigration relief available to him at that point, no question.

[00:28:35] Speaker 03:
So it doesn't matter if it's crime involving moral turpitude or not.

[00:28:38] Speaker 03:
That would help us immensely.

[00:28:39] Speaker 03:
When he got stops coming back into the country and taken into custody, if it just would have been a crime involving moral turpitude, he would have gone before Judge Bryant in Arlington and presented multiple defenses if he wanted to to deportation.

[00:28:54] Speaker 03:
And he would at least had a chance at that point.

[00:28:57] Speaker 03:
But the aggravated felony at that time foreclosed all options completely.

[00:29:02] Speaker 02:
What about the government's point that they were going to get this large six-figure restitution out of him no matter what and that that would have necessarily required that the plea be to something that's an aggravated felony level?

[00:29:19] Speaker 02:
I assume you construct a plea bargain where you plead to 18 USC 1001 and also just agree, just happen to agree to pay 200K in restitution?

[00:29:30] Speaker 03:
Well, I mean, it would have to, if he's going to plead to a fraud crime, which I'm not saying 1001 is, if the only plea available to him was a fraud crime, then the loss amount

[00:29:47] Speaker 03:
couldn't be over $10,000.

[00:29:49] Speaker 03:
It would still be an aggravated felony.

[00:29:51] Speaker 04:
So you're gonna have to give him any meaningful relief in the end.

[00:29:54] Speaker 04:
We would first have to hold, if there was, meet all the elements for this extraordinary relief.

[00:30:00] Speaker 04:
Then you're going to have to go through a negotiation with the United States to try to get a plea to a better deal than he had the first time, when nothing's changed in the cards they've got in their hands.

[00:30:13] Speaker 04:
Then you've got to get away with it.

[00:30:15] Speaker 04:
I mean, even if you get all of that, you've got no guarantee that he gets the relief from immigration.

[00:30:21] Speaker 03:
He can enter the country as soon as the plea is vacated.

[00:30:25] Speaker 04:
Stay until what happens?

[00:30:30] Speaker 04:
this case doesn't go away when he enters the country.

[00:30:32] Speaker 04:
That's correct.

[00:30:33] Speaker 04:
The United States has a case in which it's had a conviction.

[00:30:36] Speaker 04:
It has a judgment it likes.

[00:30:38] Speaker 04:
You're going to have to come in and try to negotiate them for a better deal.

[00:30:43] Speaker 04:
No guarantee you're going to get a better deal.

[00:30:45] Speaker 04:
Even if you get the better deal, you may or may not be able to get a waiver from immigration.

[00:30:53] Speaker 03:
It is in a different position because

[00:30:57] Speaker 03:
12 years has passed, so they want to take that to trial after, or maybe more than that.

[00:31:02] Speaker 03:
Somewhere in that range has passed, so they want to take it to trial after that?

[00:31:04] Speaker 03:
I don't know.

[00:31:05] Speaker 04:
Well, you've got his admissions.

[00:31:08] Speaker 04:
That helps your case an awful lot.

[00:31:10] Speaker 04:
12 years down the road, you've still got his under oath admission that he committed the crime.

[00:31:16] Speaker 03:
I understand that.

[00:31:18] Speaker 03:
What I'm saying is that

[00:31:21] Speaker 03:
If the conviction's vacated, that gives him his options back.

[00:31:27] Speaker 03:
He can try to come back if he wants to.

[00:31:29] Speaker 03:
He can not try to come back if he wants to.

[00:31:31] Speaker 03:
He can try and negotiate some sort of better plea from Jamaica.

[00:31:35] Speaker 03:
He can come back and try and do it from here.

[00:31:41] Speaker 03:
This is an important point.

[00:31:42] Speaker 03:
If he does come back,

[00:31:45] Speaker 03:
and is convicted of an aggravated felony.

[00:31:50] Speaker 03:
So the conviction's vacated.

[00:31:51] Speaker 03:
He's out of the country.

[00:31:52] Speaker 03:
He comes back.

[00:31:53] Speaker 03:
The only thing he can plead to is an aggravated felony.

[00:31:55] Speaker 03:
As I said before, the law is different regarding aggravated felonies now than it was back then.

[00:32:01] Speaker 03:
There was absolutely no relief back then.

[00:32:03] Speaker 03:
Now, somewhere along the lines of

[00:32:08] Speaker 03:
Seven circuits have found that a lawful permanent resident convicted of an aggravated felony can apply for a waiver under certain circumstances.

[00:32:17] Speaker 02:
But if he comes back in, would he come back in as a lawful permanent resident?

[00:32:23] Speaker 03:
In the past, that is the way it has happened.

[00:32:29] Speaker 06:
OK.

[00:32:29] Speaker 00:
All right, thank you.

[00:32:30] Speaker 00:
The case is submitted.

[00:32:32] Speaker 03:
Thank you.