United States v. Flavio De Morais

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-15656 Plaintiff-Appellee, D.C. Nos. 3:14-cv-00484-WHO 3:10-cr-00557-WHO-1 v. FLAVIO DE MORAIS, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding Submitted October 11, 2017** San Francisco, California Before: THOMAS, Chief Judge, and REINHARDT and O’MALLEY,*** Circuit Judges. Flavio de Morais appeals from the district court’s order denying his motion to vacate his conviction under 28 U.S.C. § 2255 for ineffective assistance of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathleen M. O'Malley, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. counsel. De Morais, a legal permanent resident, pled guilty to mail fraud in violation of 18 U.S.C. § 1341, a conviction which rendered him deportable. De Morais’s sole argument on appeal is that his retained counsel, Hugh Levine, provided ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), by failing to propose a specific alternative plea that would not have rendered De Morais deportable. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and 2255. Because Levine conducted the plea negotiations competently, and because De Morais has in any case failed to show prejudice from Levine’s purported deficient performance, we affirm. I. In 2010, following Levine’s advice, De Morais pled guilty to mail fraud in violation of 18 U.S.C. § 1341, an offense which rendered him deportable under 8 U.S.C. § 1227(a)(2)(A)(i), as a crime involving moral turpitude, and under 8 U.S.C. § 1227(a)(2)(A)(iii), as an aggravated felony. Before and after his plea, De Morais cooperated extensively with the government, and in return the government moved the district court to depart downward from the Sentencing Guidelines in sentencing De Morais. The district court granted that request in 2011 by imposing a noncustodial sentence of three years’ probation and ordering De Morais to pay $161,149 in restitution, jointly and severally with two other defendants. In 2014, De Morais moved the district court to vacate his conviction under 2 § 2255, claiming primarily that Levine provided ineffective assistance by failing to advise De Morais of the immigration consequences of his plea. After holding two evidentiary hearings, the district court denied the motion, concluding that Levine informed De Morais of the virtually certain immigration consequences of pleading guilty to mail fraud and competently attempted to help De Morais avoid those consequences. Narrowing his position, De Morais argues on appeal that Levine rendered ineffective assistance because he failed to seek an alternative plea to theft, embezzlement, or misapplication by a bank officer or employee in violation of 18 U.S.C. § 656. De Morais contends that a conviction ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals