                                                                             FILED
                            NOT FOR PUBLICATION                               NOV 23 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-30238

               Plaintiff - Appellee,              D.C. No. 2:06-cr-00307-RSM

 v.
                                                  MEMORANDUM*
KHANG KIEN TRAN,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Western District of Washington
                    Ricardo S. Martinez, District Judge, Presiding

                           Submitted November 18, 2015**

Before:        TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

      Khang Kien Tran appeals from the district court’s order denying his petition

for a writ of error coram nobis. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s denial of a petition for a writ of error coram

nobis, see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007), and we

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
vacate and remand.

      Tran argues that he received ineffective assistance of counsel in connection

with his guilty plea, citing both Padilla v. Kentucky, 559 U.S. 356 (2010), and

United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). The district court correctly

concluded that Tran is not entitled to relief under Padilla, as that decision does not

apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013);

see also United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir. 2002)

(retroactivity framework of Teague v. Lane, 489 U.S. 288 (1989), applies to

collateral attacks on federal convictions).

      The district court did not separately address Tran’s reliance on Kwan.

Insofar as the district court rejected that argument, it did not have the benefit of our

decision in United States v. Chan, 792 F.3d 1151, 1554 (9th Cir. 2015), which

concluded that Padilla did not fully abrogate Kwan. Further, because Tran’s

conviction became final after Kwan, retroactivity concerns do not bar Tran from

asserting that counsel’s affirmative misrepresentations regarding the immigration

consequences of his guilty plea constituted ineffective assistance. We accordingly

vacate the district court’s order denying Tran’s petition. We remand the case to the

district court to address this claim and reconsider whether Tran qualifies for coram

nobis relief. In so doing, we express no opinion as to the merits of Tran’s claim.


                                              2                                  14-30238
The government’s motion to supplement the record is denied as unnecessary.

VACATED and REMANDED.




                                 3                                  14-30238
