17-2353-cr
United States v. Carrasco

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
3rd day of July, two thousand nineteen.

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            v.                                                17-2353-cr

LUIS ALEX CARRASCO,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:           Lawrence V. Carra, Mineola, N.Y.
                                   Carl Irace, East Hampton, N.Y.

Appearing for Appellee:            Charles P. Kelly, Assistant United States Attorney (Amy Busa,
                                   Assistant United States Attorney, on the brief), for Richard P.
                                   Donoghue, United States Attorney for the Eastern District of New
                                   York, Brooklyn, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Bianco, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the matter be and it hereby is REMANDED for further proceedings
consistent with this order.

         Defendant-Appellant Luis Alex Carrasco appeals from a June 28, 2017, judgment of
conviction pursuant to a plea of guilty in the United States District Court for the Eastern District
of New York (Bianco, J.) on the grounds that he did not knowingly and willingly plead guilty to
a violation of 26 U.S.C. § 7206(1) because his counsel was ineffective.1 Specifically, Carrasco
argues that his counsel in the district court was ineffective because he failed to warn Carrasco
that, because he is not a U.S. citizen, pleading to a violation of 26 U.S.C. § 7206(1) subjected
him to mandatory deportation. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        We apply a two-prong test to determine whether counsel was ineffective: “[A] defendant
must show that counsel’s representation ‘fell below an objective standard of reasonableness’ and
that he was prejudiced as a result.” Jae Lee v. United States, 137 S. Ct. 1958, 1964 (2017)
(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).

        Carrasco argues that his counsel in the district court, John Wallenstein, provided him
with representation that fell below an objective standard of reasonableness. In Padilla v.
Kentucky, the Supreme Court held that, “when the deportation consequence” of entering a guilty
plea “is truly clear,” counsel must give her client “correct advice” as to what the consequence of
entering a guilty plea is. 559 U.S. 356, 369 (2010). The immigration consequence of Carrasco’s
guilty plea to 26 U.S.C. § 7206(1) was clear: the Supreme Court has held that a violation of 26
U.S.C. § 7206(1) is an aggravated felony, rendering the crime a “deportable offense[].”
Kawashima v. Holder, 565 U.S. 478, 484-85 (2012). Non-citizens who are convicted of
aggravated felonies face a “lifetime citizenship bar, a conclusive presumption of deportability,
and automatic denial of discretionary relief.” Doe v. United States, 915 F.3d 905, 908 (2d Cir.
2019); see also 8 U.S.C. § 1227(a)(2)(A)(iii). Carrasco and Wallenstein have submitted
affidavits to this Court that state that Wallenstein did not inform Carrasco that a conviction under
26 U.S.C. § 7206(1) would subject him to mandatory deportation. Because the district court has
not yet considered the evidence regarding Wallenstein’s representation, we remand to the district
court for consideration of whether Wallenstein provided Carrasco with objectively unreasonable
representation.

       In order to satisfy the second prong of the test for ineffective assistance, that the
defendant suffered prejudice from counsel’s errors, “the defendant must show that 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). This Court considers
how counsel’s provision of inaccurate information affected the “defendant’s decisionmaking,
which may not turn solely on the likelihood of conviction after trial.” Jae Lee, 137 S. Ct. at 1966.
A defendant asserting ineffective assistance based on an attorney’s inaccurate immigration
advice “must clearly demonstrate that he placed particular emphasis on immigration
1
  On August 17, 2017, the district court amended this judgment to require Carrasco to pay
interest on an order of restitution. Am. J. in a Criminal Case at 6, United States v. Carrasco, No.
2:14-cr-182 (E.D.N.Y. Aug. 17, 2017), ECF No. 69.

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consequences in deciding whether or not to plead guilty.” Kovacs v. United States, 744 F.3d 44,
52 (2d Cir. 2014) (alteration omitted) (internal quotation marks omitted). In evaluating such a
defendant’s claim, the court “cannot rely solely on post hoc assertions from a defendant” and
“must also look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Doe, 915 F.3d at 912 (internal quotation marks omitted) (quoting Jae Lee, 137 S.
Ct. at 1967).

        Carrasco primarily relies on two categories of evidence to establish that he suffered
prejudice: (1) his own affidavit and an affidavit from Wallenstein that suggest that Carrasco was
particularly concerned about the effect of his plea on his immigration status, and (2) “[h]is
history in the United States, his family circumstances, and his gainful employment,” which he
contends “signal [a] strong connection to, and desire to remain in, the United States,” id. Because
the district court has not yet evaluated this evidence, we remand to the district court for an
evidentiary hearing.

        Accordingly, we REMAND to the district court for further proceedings consistent with
this order. The district court is to determine in the first instance whether Carrasco’s conviction
should be vacated on the basis of ineffective assistance of counsel.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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