United States v. Philip Swaby , 855 F.3d 233 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7616
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP SWABY,
Defendant - Appellant.
No. 15-7621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP SWABY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:11-cr-00607-RDB-2; 1:15-cv-02657-RDB)
Argued: December 7, 2016 Decided: April 24, 2017
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Wynn and Judge Thacker joined.
ARGUED: Bradley Nelson Garcia, O’MELVENY & MYERS LLP, Washington, D.C.,
for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jeremy Maltby,
David K. Roberts, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
2
GREGORY, Chief Judge:
Philip Swaby brings a Sixth Amendment ineffective assistance of counsel
challenge to his conviction, which led to his deportation as an aggravated felon. While
Swaby’s counsel provided deficient performance, the district court determined that the
deficient performance did not prejudice his defense because the court corrected his
counsel’s deficiencies. For the reasons below, we reverse the district court’s dismissal,
grant Swaby’s habeas petition, and remand for further proceedings.
I.
A.
Philip Swaby is a citizen of Jamaica, and had been a lawful permanent resident of
the United States since June 6, 2001. He is married to a U.S. resident, has two daughters
who are U.S. citizens, and acts as a father to his wife’s daughter from a prior marriage.
On November 10, 2011, Swaby and his then-girlfriend, now-wife, Ms. Robinson,
were indicted for trafficking in counterfeit goods under 18 U.S.C. § 2320 and conspiracy
to traffic in counterfeit goods. According to the indictment, Swaby and Robinson sold
counterfeit merchandise from a store called Fashion Trendz. They had counterfeit purses,
handbags, and other merchandise; counterfeit labels for expensive brand names; and
generic merchandise bearing no labels.
Peter Ward served as Swaby’s appointed counsel. Ward immediately recognized
that “immigration status would be a significant consideration” for Swaby, who had a
green card and intended to apply for U.S. citizenship. J.A. 147. And from the beginning
3
of the representation, Swaby “[wa]s concerned and ha[d] always been concerned about
his immigration status.” J.A. 83.
Under federal immigration law, any alien convicted of an “aggravated felony” is
deportable. 8 U.S.C. § 1227(a)(iii). Aliens rendered deportable because of an aggravated
felony are ineligible for asylum or cancellation of removal. Moncrieffe v. Holder, 133 S.
Ct. 1678, 1682 (2013). Indeed, deportation is so likely for those convicted of an
aggravated felony that it is akin to “mandatory deportation.” United States v. Akinsade,
686 F.3d 248, 254 (4th Cir. 2012). One such aggravated felony that triggers mandatory
deportation is an offense involving counterfeiting for which the term of imprisonment is
greater than one year. 8 U.S.C. § 1101(a)(43)(R). A second aggravated felony is one
that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
8 U.S.C. § 1101(a)(43)(M)(i).
Recognizing that he lacked expertise in immigration law, Ward contacted Mary
Ann Berlin, an immigration lawyer, for advice. He sent her a copy of Swaby’s
indictment and the relevant criminal statute.
Berlin immediately recognized that Swaby needed to avoid conviction of an
aggravated felony. She first advised Ward that Swaby’s sentence must be under one year
in order to avoid categorization as an aggravated felony. When looking at the criminal
counterfeiting statute, she saw that 18 U.S.C. § 2320(a)(2) prohibited trafficking of
counterfeit merchandise “the use of which is likely . . . to deceive.” Conversely,
§ 2320(a)(1) lacked any “deceit’ or “fraud” language, and thus would not be an
aggravated felony for immigration purposes under 8 U.S.C. § 1101(a)(43)(M)(i). She
4
advised Ward accordingly, and based on this advice Ward negotiated a plea agreement
where Swaby would plead guilty to 18 U.S.C. § 2320(a)(1) and agree to pay $14,220 in
restitution. His sentence was 364 days long.
Unfortunately, Berlin had looked at an amended version of § 2320(a)(1) that did
not apply to Swaby’s case. 1 Based on the version of the statute applicable to Swaby’s
case, 18 U.S.C. § 2320(a)(1)’s language included deception. As a result, Swaby
unknowingly pleaded to an aggravated felony that rendered him automatically
deportable.
Swaby’s plea agreement bore the broad warning about immigration consequences
that is common to many plea agreements:
By pleading guilty, the Defendant will also be giving up
certain valuable civil rights and may be subject to deportation
or other loss of immigration status. . . . [C]onviction for a
broad range of crimes can lead to adverse immigration
consequences, including automatic removal from the United
States. . . . Defendant understands that no one, including his
attorney or the Court, can predict with certainty the effect of a
conviction on immigration status. Defendant nevertheless
affirms that he wants to plead guilty regardless of any
potential immigration consequences.
J.A. 34. And at Swaby’s plea hearing, the district court recited the warning commonly
heard at such proceedings: “You should understand that, by pleading guilty this
afternoon, you may be essentially doing something that will lead to your deportation or
removal from the United States.” J.A. 49. The district court also referenced potential
1
It is unclear from the record whether Ward sent Berlin an erroneous version of
the statute. But regardless, it is clear that Ward never checked Berlin’s advice against the
correct version of the statute.
5
removal from the United States when informing Swaby of the many collateral
consequences Swaby may endure because he pleaded to a felony charge. J.A. 60-61.
Ward emphasized to the court that he consulted with Berlin about the plea
agreement’s immigration consequences, and that “the factors in the plea were arrived
[at]” based on those discussions. J.A. 64-65. While neither Ward nor the district court
could guarantee Swaby’s immigration consequences, the district court warned Swaby of
merely the “risk” of deportation. J.A. 66. Neither Ward nor the district court informed
Swaby that he was pleading to a crime that rendered him automatically deportable.
Swaby pleaded guilty and was sentenced to 364 days of incarceration, $14,220 in
restitution payment, and three years of supervised release. But soon after Swaby was
released from prison, the Department of Homeland Security lodged an immigration
detainer against him and planned to deport him because he had pleaded to an aggravated
felony.
B.
While detained, Swaby filed a petition for a writ of coram nobis on March 20,
2015. He alleged that he received ineffective assistance of counsel during his criminal
proceedings, in violation of the Sixth Amendment. The district court found that Ward’s
reliance on an inapplicable version of the statute and reassurance that pleading guilty to
§ 2320(a)(1) would reduce Swaby’s risk of deportation was clearly wrong. J.A. 121.
And Ward’s error constituted deficient performance. But the district court found that
Ward’s deficient performance did not prejudice Swaby’s proceedings because the court
warned Swaby that his guilty plea could lead to his deportation, and thus remedied any
6
misunderstanding that might have resulted from Ward’s deficient performance. J.A. 123-
24. As a result, the district court denied Swaby’s coram nobis petition.
Swaby next filed a § 2255 habeas petition on September 9, 2015, alleging the
same constitutional violation. See J.A. 127. The district court treated this petition like a
second coram nobis petition because, although Swaby was still detained for immigration
purposes, Swaby was no longer incarcerated and therefore no longer “in custody.” J.A.
134 & n.2. For the same reasons as explained in the coram nobis petition, the district
court denied habeas relief. Swaby filed a timely notice of appeal from this denial.
II.
On appeal, the government argues that we lack jurisdiction over Swaby’s claim.
According to the government, Swaby’s coram nobis petition should have been treated
like a § 2255 habeas petition because he was in custody at the time of filing. As a result,
the government believes that we lack jurisdiction over Swaby’s titled § 2255 habeas
petition because it is an improper successive petition, and that we lack jurisdiction over
Swaby’s first petition because Swaby has not requested a certificate of appealability.
A writ of coram nobis is an exceptional remedy that may be granted only when a
fundamental error has occurred and no other available remedy exists. United States v.
Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). Here, habeas was in fact available to
Swaby. As a result, Swaby could seek relief only through a habeas petition, and not
through a coram nobis petition.
7
The parties dispute whether habeas was available to Swaby, because the case law
is unclear if an individual under supervised release is still “in custody” after deportation.
But an applicant need only be “‘in custody’ when the application for habeas corpus is
filed.” 2 Carafas v. LaVallee, 391 U.S. 234 (1968). And “[a] prisoner on supervised
release is considered to be ‘in custody’ for the purposes of a § 2255 motion.” United
States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999). Here, Swaby was in the United
States, under supervised release and detained by immigration authorities, when he filed
both of his petitions. Thus, he was in custody, and habeas was available to Swaby when
he filed his coram nobis petition. As a result, we view Swaby’s first petition as an
invalid coram nobis petition, and his titled habeas petition as a valid habeas petition for
which Swaby has filed a notice of appeal. 3
Swaby correctly notes that we are authorized to treat his timely notice of appeal as
a request for a certificate of appealability. A certificate of appealability may only be
issued when the applicant “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has rejected the
2
When an inmate is released from custody, a habeas petition may become moot.
But here, the collateral immigration consequences Swaby continues to suffer from
because of his federal felony conviction ensure his case is not moot. See Carafas v.
LaVallee, 391 U.S. 234, 237-38 (1968).
3
Like the district court was, we may treat Swaby’s coram nobis petition like a
habeas petition. See, e.g., Castro v. United States, 540 U.S. 375, 381 (2003) (noting that
federal courts are free to recharacterize a litigant’s postconviction motion to avoid
unnecessary dismissal, avoid inappropriately stringent application of formal labeling
requirements, or better express the motion’s legal basis). But we do not have to,
especially here where Swaby has filed, received a final judgment on, and timely appealed
a habeas petition on the same issue.
8
applicant’s constitutional claim on the merits, an appellate court may issue a certificate of
appealability if the applicant “demonstrate[s] that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S 473, 484 (2000). For the reasons below, we find that reasonable
jurists would find the district court’s decision on Swaby’s Sixth Amendment claim
debatable or wrong. As a result, we issue a certificate of appealability, and therefore
have jurisdiction over Swaby’s petition.
III.
We next turn to the merits of Swaby’s Sixth Amendment claim. We review a
district court’s denial of habeas relief de novo. 4 Teleguz v. Pearson, 689 F.3d 322, 327
(4th Cir. 2012).
To prevail on an ineffective assistance of counsel claim under the Sixth
Amendment, Swaby must show both that (1) his counsel was professionally unreasonable
and (2) his counsel’s deficient performance prejudiced Swaby’s defense. Strickland v.
4
The district court treated Swaby’s habeas petition like a second coram nobis
petition and adopted much of the district court’s analysis in Swaby’s original coram
nobis petition. Yet the district court’s coram nobis analysis is identical to an analysis
used for habeas petitions. Cf. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)
(“Because of the similarities between coram nobis proceedings and § 2255 proceedings,
the § 2255 procedure often is applied by analogy in coram nobis cases.”). The district
court received a habeas petition, reviewed the petition like a habeas petition, and denied
the petition. Therefore, we view the district court’s disposition as a dismissal of a habeas
petition on the merits.
9
Washington, 466 U.S. 668, 691-92 (1984). These are often called the “deficient
performance” and “prejudice” prongs of a Strickland inquiry.
A.
We first turn to the deficient performance prong. Counsel’s failure to advise a
client about “succinct, clear, and explicit” immigration consequences for a conviction is
constitutionally deficient performance under the Sixth Amendment. Padilla v. Kentucky,
559 U.S. 356 (2010). In Padilla v. Kentucky, Padilla’s counsel did not inform Padilla that
he was pleading to an aggravated felony that rendered him categorically deportable. Id.
at 368-69. And while immigration consequences can be complex, Padilla’s counsel could
have determined that Padilla’s crime was an aggravated felony “simply from reading the
text of the statute.” Id. at 368. His failure to do so, and his “false assurance” that the
conviction would not result in Padilla’s removal from the country, easily constituted
deficient performance.
Swaby’s circumstances here are identical to Padilla’s, and similarly demonstrate
deficient performance. Like Padilla’s counsel, Ward failed to inform Swaby that, under
the plea agreement, Swaby would be pleading to an aggravated felony that would render
him categorically deportable. Like the error in Padilla, Ward only needed to read the
correct version of the statute to determine that the crime was an aggravated felony. And
like the false assurances Padilla’s counsel made, Ward structured the plea agreement to
avoid an aggravated felony and advised Swaby that the plea agreement presented only a
risk, but not a certainty, of deportation.
10
Effective representation by counsel requires that counsel provide correct advice
when the deportation consequences are clear. See id. at 369. Ward’s error--in providing
Berlin with the incorrect statute, failing to read the statute to verify Berlin’s advice, or
both--constitutes deficient performance under the Sixth Amendment.
B.
Swaby must also show that Ward’s deficient performance prejudiced Swaby’s
defense. But a defendant cannot show prejudice if the district court corrects the
misadvice and the defendant understands the correction. United States v. Akinsade, 686
F.3d 248, 253 (4th Cir. 2012). Here, the parties dispute whether the district court’s
general warnings cured Ward’s deficient performance. We hold that the court’s
warnings, which were general and referenced only a vague “risk” or possibility of
deportation, do not.
In United States v. Akinsade, this Court found that the district court’s general
warnings of a risk of deportation did not correct the counsel’s deficient performance.
There, Akinsade pleaded guilty to one count of embezzlement after relying on his
counsel’s erroneous advice that the offense would not render him deportable. Id. at 250.
At the plea colloquy, the district court reviewed the potential collateral consequences to
Akinsade if he pleaded guilty to a felony, including the risk that he “could be deported.”
Id. This Court recognized that a “careful explanation” specifically correcting the
misadvice may cure any prejudice the misadvice might have caused. Id. at 253-54. But a
“general and equivocal admonishment” about merely the risk of deportation is
insufficient to cure counsel’s erroneous advice that the defendant’s crime would not
11
render him categorically deportable. Id. at 254. And in Akinsade, the district court’s
vague warning about only a risk of deportation failed to inform Akinsade that he faced
likely mandatory deportation by pleading to an aggravated felony. Id. Thus, the court’s
general and equivocal instruction did not cure counsel’s deficient performance because
Akinsade could not have known at the plea colloquy that his plea was for an aggravated
felony that led to categorical deportation.
Swaby’s case is identical to Akinsade’s. Like in Akinsade, Swaby only received
general and equivocal admonishments about a risk of deportation. Neither Ward nor the
district court informed Swaby that he was pleading to an aggravated felony rendering him
categorically deportable. The court’s general, nonspecific warning that Swaby may face
immigration consequences and may be deported could not cure Ward’s deficient
performance.
C.
Having established that Swaby satisfies the deficient performance prong and that
the district court’s warning did not cure the deficient performance, we next turn to the
prejudice prong of the Strickland inquiry. A defendant satisfies this prong by showing
that his counsel’s deficient performance prejudiced his defense by “affect[ing] the
outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant is
prejudiced if “there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Id. Our sister circuits
have also, we believe correctly, recognized that a defendant is prejudiced if there is a
reasonable probability that the defendant could have negotiated a plea agreement that did
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not affect his immigration status. United States v. Rodriguez-Vega, 797 F.3d 781, 788-89
(9th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52-53 (2d Cir. 2014). We first
conclude that Swaby has shown a reasonable probability that he could have negotiated a
plea agreement that avoided immigration consequences. We next conclude that Swaby
has shown a reasonable probability that he would have gone to trial rather than accept the
plea agreement if he were aware of the agreement’s immigration consequences. As a
result, Swaby satisfies the prejudice prong of the Strickland analysis.
1.
We first examine whether Swaby has demonstrated a reasonable likelihood that he
could have negotiated a plea agreement that avoided immigration consequences. The
Second and Ninth Circuits have adopted the same metric by which to make this
assessment, and we adopt this standard.
In Kovacs v. United States, the Second Circuit reviewed an immigrant’s coram
nobis petition seeking vacatur of his guilty plea because his attorney erroneously
informed him that the crime to which he pleaded guilty was not a deportable offense.
744 F.3d 44, 49-50 (2d Cir. 2014). After concluding that Kovacs satisfied the deficient
performance prong, the court turned to the prejudice inquiry. The court held that a
defendant was prejudiced if, “but for counsel’s unprofessional errors, there was a
reasonable probability that the petitioner could have negotiated a plea that did not impact
immigration status.” Id. at 52. To make this showing, Kovacs had to demonstrate both
his resolute intent to structure a plea agreement that avoided immigration consequences,
and a reasonable probability “that the prosecution would have accepted, and the court
13
would have approved, a deal that had no adverse effect on [Kovacs’s] immigration
status.” Id.
The Second Circuit found that Kovacs made this showing. It was apparent that
Kovacs had a “single-minded focus” in the plea negotiations on avoiding immigration
consequences. His attorney and the government also settled on the criminal charge
during plea negotiations “for the sole reason that [the attorney] believed it would not
impair Kovacs’ immigration status.” Id. at 53. These facts demonstrated a reasonable
probability that the prosecution and the court would have accepted a different plea
agreement that would not render Kovacs deportable. Id.
In United States v. Rodriguez-Vega, the Ninth Circuit adopted the Second
Circuit’s reasoning. It initially determined that a defendant could show a reasonable
probability of negotiating a better plea agreement by identifying cases where the
government allowed a defendant who committed a similar crime to plead to a lesser, non-
deportable offense. 797 F.3d at 788. But it further stated that “[a] petitioner may also
demonstrate a reasonable probability [of negotiating a better plea] by showing that she
settled on a charge in a purposeful attempt to avoid an adverse effect on her immigration
status.” Id. at 789. Citing Kovacs, the Ninth Circuit found that Rodriguez-Vega made
this showing: Rodriguez-Vega rejected an initial plea bargain, and then accepted a later
bargain only after a particular removal provision was deleted and she had been advised
that she was less likely to be deported for a misdemeanor than a felony. Id.
Here, Swaby’s negotiations displayed a similarly single-minded focus and similar
acquiescence by the government. As a result, Swaby has demonstrated a reasonable
14
likelihood that he would have negotiated for, and the government would have been
amenable to, a plea agreement that had no immigration consequences. Like the counsel
in Kovacs and Rodriguez-Vela, Ward was aware of Swaby’s immigration concerns from
the outset of the case and structured the plea agreement with the sole purpose of avoiding
immigration consequences. J.A. 149-51. After receiving advice from Berlin, Ward
requested several changes aimed at avoiding Swaby’s immigration consequences,
including pleading to a different charge, reducing the sentence to 364 days, and
incorporating edits that removed fraud and deception language from the stipulation of
facts. And the government accepted all of Ward’s requests, except for Ward’s request to
reduce Swaby’s crime to “aiding and abetting.” J.A. 164. Swaby’s single-minded focus
in structuring the plea agreement to avoid immigration consequences, and the
government’s acquiescence to Ward’s many modifications, demonstrate that Swaby had a
reasonable likelihood of successfully negotiating a plea agreement that avoided
categorical deportation.
Ward asserts that the government would not have acquiesced to a plea agreement
with under $10,000 in losses because he had asked the prosecution “in further
conversations” to reduce the loss amount below $10,000 and was rejected. J.A. 151. But
none of his plea negotiations in the record indicate that he raised the issue. J.A. 158-64.
And because Ward believed the plea agreement lacked language about fraud or deceit,
Ward could not have been on notice that the loss amount rendered Swaby’s crime an
aggravated felony. Given the government’s flexibility in Ward’s other, similarly aimed
requests, it is reasonably likely that the government may have agreed to a loss amount
15
below $10,000 in exchange for other concessions had Ward known the full importance of
the loss amount. This is especially true when even the government’s initial
communications stated that the plea agreement would seek a loss amount between
$10,000 and $30,000, and the ultimate plea agreement resulted in only $14,220 in
restitution.
For these reasons, Swaby has demonstrated a reasonable likelihood that, but for
his counsel’s erroneous advice, he could have negotiated a different plea agreement. As a
result, Ward’s deficient performance prejudiced Swaby’s defense.
2.
Swaby alternatively can demonstrate prejudice by showing a reasonable likelihood
that, absent his counsel’s error, he would have gone to trial instead. To determine
Swaby’s reasonable likelihood of going to trial, we must look to the strength of the state’s
case “inasmuch as a reasonable defendant would surely take it into account.” Ostrander
v. Green, 46 F.3d 347, 356 (4th Cir. 1995), overruled on other grounds by O’Dell v.
Netherland, 95 F.3d 1214 (4th Cir. 1996). But likelihood of acquittal at trial is not the
only factor a defendant considers, especially when the offered plea carries considerable
collateral consequences. For example, this Court has found prejudice when the defendant
“had significant familial ties to the United States and thus would reasonably risk going to
trial instead of pleading guilty and facing certain deportation.” Akinsade, 686 F.3d at
255. And a defendant facing deportation may go to trial for a crime involving fraud or
deceit, despite overwhelming evidence of guilt, in order to assert that the crime’s
estimated loss was less than $10,000. See id. at 255-56.
16
In Akinsade, Akinsade’s guilty plea to one count of embezzlement by a bank
employee of $16,400 was an aggravated felony because it was a crime involving fraud or
deceit with a loss amount of more than $10,000. Had he known about the consequences
of his guilty plea, Akinsade and his attorney assert that Akinsade would have gone to trial
to dispute the alleged loss amount, and to argue that the loss amount attributable to his
crime was less than $10,000. Such a choice “is rational,” and this Court noted that it
“cannot conclude that a reasonable defendant in Akinsade’s shoes” would have acted
differently. Id. at 256.
Swaby’s case is indistinguishable. Similar to Akinsade, Swaby alleges in a sworn
affidavit submitted with his coram nobis petition that he would have gone to trial rather
than plead guilty in order to avoid deportation. He specifically alleges that he would
have contested the loss amount, J.A. 101, which he asserts were rough estimates made
during plea negotiations and based on overly inflated values of brand marks unattached to
merchandise. And even more than Akinsade, Swaby has long familial ties to the United
States, including a wife and children. It is rational that a person in his situation, with
such strong connections to this country, would rather risk a trial to reduce the loss amount
than plead guilty and accept the certainty of deportation.
The government asserts that no reasonable person in Swaby’s position would have
gone to trial because, based on the government’s evidence, Swaby likely would have
17
been convicted and found guilty of a loss amount greater than $10,000. 5 But the
prejudice prong does not require a defendant to show that going to trial would have been
the best objective strategy or even an attractive option. It merely requires the defendant
to show a reasonable likelihood that a person in the defendant’s shoes would have chosen
to go to trial. The decision does not need to be optimal and does not need to ensure
acquittal; it only needs to be rational.
Here, Swaby is a husband, a father, and had been a resident of the United States
since 2001. It is not only reasonably likely, it is unsurprising that Swaby, had he known
the true consequences of his guilty plea, would have taken any chance, no matter how
slim, to avoid deportation by going to trial than accept mandatory deportation from his
family and resident country. And here, Swaby’s likelihood of success was not minimal.
See, e.g., Lee v. United States, 825 F.3d 311, 313-14 (6th Cir. 2016) (describing, in
examining Strickland’s prejudice prong, circuit split on whether immigrant-defendant’s
desire to throw a “Hail Mary,” like a hope for jury nullification, at trial in hopes of
5
The government asserts that Swaby had no chance of reducing the loss amount
below $10,000 at trial. In addition to defending its estimates, including an estimate of
$8,804 by Coach for the number of counterfeit items seized, the government asserts that a
single counterfeit mark has the value of an authentic product. Thus, the 2,000 recovered
counterfeit marks must value more than $10,000. Appellee Br. 28 (citing J.A. 106). But
it is unclear how counterfeit marks, unattached to any merchandise and therefore lacking
any authentic comparator, can be assessed for lost value. Cf., e.g., United States v. Cone,
714 F.3d 197 (4th Cir. 2013) (mentioning unattached brand marks but determining only
whether particular products were counterfeit); United States v. Habegger, 370 F.3d 441
(4th Cir. 2004) (mentioning unattached brand marks but only discussing counterfeit
charges for counterfeit socks and T-shirts); Chanel, Inc. v. Banks, No. WDQ-09-845,
2011 WL 121700 (D. Md. Jan. 13, 2011) (unreported) (calculating, in civil suit, statutory
damages based on each counterfeit mark per type of goods sold).
18
avoiding deportation is a rational decision that amounts to prejudice), cert. granted, 137
S. Ct. 614 (Dec. 14, 2016). 6 Therefore, Ward’s deficient performance prejudiced
Swaby’s defense because there was a reasonable likelihood he would have gone to trial.
IV.
For these reasons, Swaby’s Sixth Amendment right to effective counsel was
violated during his criminal proceedings. We reverse the district court’s denial of habeas
relief, vacate Swaby’s conviction, and remand for further proceedings consistent with this
opinion.
REVERSED, VACATED, AND REMANDED
6
The Sixth Circuit characterizes this Court’s Akinsade decision as one holding
that a “Hail Mary” thrown at trial is not rational. But we have never so held.
19