Argued: December 7, 2016
from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
Bradley Nelson Garcia, O'MELVENY & MYERS LLP,
Washington, D.C., for Appellant.
Simcha Jon Zelinsky, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Maltby, David K. Roberts, O'MELVENY & MYERS LLP,
Washington, D.C., for Appellant.
Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
GREGORY, Chief Judge:
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
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.
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.
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 of the representation, Swaby
"[wa]s concerned and ha[d] always been concerned about
his immigration status." J.A. 83.
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. §
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
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 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.
Berlin had looked at an amended version of § 2320(a)(1)
that did not apply to Swaby's case. 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.
plea agreement bore the broad warning about immigration
consequences that ...