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NOT FOR PUBLICATION FILED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
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§ 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 under § 656 would not have
rendered him deportable because it is neither a crime involving moral turpitude nor
an aggravated felony.
II.
We review a district court’s denial of a § 2255 motion de novo, and we
review its factual findings for clear error. United States v. Aguirre-Ganceda, 592
F.3d 1043, 1045 (9th Cir. 2010). “We may affirm on any ground supported by the
record even if it differs from the rationale of the district court.” Washington v.
Lampert, 422 F.3d 864, 869 (9th Cir. 2005).
“[T]he two-part Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58
(1985). A petitioner claiming ineffective assistance of counsel must show both
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deficient performance and prejudice. Strickland, 466 U.S. at 687–88, 694.
“To establish deficient performance, a person challenging a conviction must
show that ‘counsel’s representation fell below an objective standard of
reasonableness.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 688). The court considering the challenge “must apply a
‘strong presumption’ that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance.” Id. (quoting Strickland, 466 U.S. at 689).
When a conviction carries with it “clear” deportation consequences for a
noncitizen defendant, however, counsel has “the duty to give correct advice”
regarding those consequences. Padilla v. Kentucky, 559 U.S. 356, 367–69 (2010).
“With respect to prejudice, a challenger must demonstrate ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Harrington, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 694). To establish prejudice in the plea bargaining context,
a petitioner must show a reasonable probability that “the outcome of the plea
process would have been different with competent advice.” Lafler v. Cooper, 566
U.S. 156, 163 (2012) (citations omitted).
III.
Levine’s performance was not deficient. The district court found that
Levine was well aware that a conviction for mail fraud would render De Morais
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deportable. The district court also found that, before Levine advised De Morais to
plead guilty to the mail fraud charge, Levine repeatedly attempted to negotiate with
the government to change the offense of conviction from mail fraud, but the
government repeatedly refused. We see no error in these findings.
De Morais focuses on the fact that the only alternative offense of conviction
that Levine proposed in these negotiations was misprision of a felony in violation
of 18 U.S.C. § 4. De Morais argues that Levine failed to take the opportunity to
suggest to the government that De Morais plead guilty to aiding and abetting bank
theft in violation of 18 U.S.C. § 656. But, at the district court’s evidentiary
hearing, Levine testified about a phone call with a government prosecutor where
the prosecutor informed Levine that the government would only accept a plea to
mail fraud or wire fraud. Levine also testified that he had considered and rejected
all of the other offenses that arguably may have been applicable, including § 656.
Given this testimony and the absence of any authority indicating that § 656 is
applicable to De Morais, the record does not support the conclusion that Levine
failed to advocate for De Morais competently and diligently throughout the plea
negotiations. Under the circumstances, Levine’s performance was well within “the
‘wide range’ of reasonable professional assistance.” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 689).
Even assuming for the sake of argument that Levine provided ineffective
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assistance by failing to raise the possibility of pleading to a violation of § 656, De
Morais has failed to show prejudice from that failure. De Morais has adduced no
evidence suggesting that the government would have been receptive to such a
suggestion; to the contrary, as discussed above, Levine testified that the
government would not accept any plea other than mail fraud or wire fraud. De
Morais argues that the government might have been open to negotiation because he
cooperated and because § 656 carries a higher maximum penalty than the actual
crime of conviction. This is no more than speculation, however.
In any case, a conviction under § 656 still may have rendered De Morais
deportable. Theft offenses involving the intent to deprive the owner of possession
permanently may be crimes of moral turpitude that render the defendant deportable
under 8 U.S.C. § 1227(a)(2)(A)(i). See Alvarez-Reynaga v. Holder, 596 F.3d 534,
537 (9th Cir. 2010) (holding that a conviction for a theft offense under California
law was not a crime of moral turpitude because “[t]here [was] no evidence in the
record establishing that [the defendant’s] offense involved an intent to deprive the
owner of possession permanently”). And, although not every violation of § 656
constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), a violation
with intent to defraud does. Carlos-Blaza v. Holder, 611 F.3d 583, 589 (9th Cir.
2010).
Given the government’s insistence that De Morais plead guilty to a crime
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involving fraud, De Morais cannot demonstrate a reasonable probability that the
government would have accepted a plea to a violation of § 656 that did not include
an admission of intent to defraud. Nor has De Morais suggested that he intended
to return the money he obtained illegally. A conviction under § 656 likely would
have qualified as a crime of moral turpitude or an aggravated felony, and it likely
would have rendered De Morais deportable. De Morais, in sum, has not shown a
reasonable probability that the outcome of the plea negotiations would have been
different if Levine had conducted them differently.
IV.
The district court’s denial of De Morais’s motion under 28 U.S.C. § 2255 to
vacate his conviction is AFFIRMED.
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