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United States v. Swaby

United States Court of Appeals, Fourth Circuit

April 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
PHILIP SWABY, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
PHILIP SWABY, Defendant-Appellant.

          Argued: December 7, 2016

          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:

          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.

          Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

          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 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 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 ...


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