                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0135p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 JAE LEE,                                              ┐
                               Petitioner-Appellant,   │
                                                       │
                                                       │
        v.                                              >      No. 14-5369
                                                       │
                                                       │
 UNITED STATES OF AMERICA,                             │
                              Respondent-Appellee.     │
                                                       ┘
                         Appeal from the United States District Court
                      for the Western District of Tennessee at Memphis.
       Nos. 2:09-cr-20011-1; 2:10-cv-02698—John Thomas Fowlkes, Jr., District Judge.

                                 Argued: January 28, 2016

                              Decided and Filed: June 8, 2016

              Before: NORRIS, BATCHELDER, and SUTTON, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Patrick T. McNally, WEATHERLY, MCNALLY & DIXON, PLC, Nashville,
Tennessee, for Appellant. Kevin P. Whitmore, UNITED STATES ATTORNEY’S OFFICE,
Memphis, Tennessee, for Appellee. ON BRIEF: Patrick T. McNally, WEATHERLY,
MCNALLY & DIXON, PLC, Nashville, Tennessee, for Appellant. Kevin P. Whitmore,
UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

       ALICE M. BATCHELDER, Circuit Judge. Jae Lee, now 47 years old, moved to the
United States from South Korea with his family in 1982 and has lived here legally ever since.
After completing high school in New York, he relocated to Memphis, Tennessee, where he



                                              1
No. 14-5369                           Lee v. United States                        Page 2


became a successful restaurateur. He also became a small-time drug dealer, and, in 2009,
following a sting operation, he was charged with possession of ecstasy with intent to distribute in
violation of 21 U.S.C. § 841(a)(1).

       The case against him was very strong. A government witness was prepared to testify that
he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered
during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed
ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial
attorney advised him to plead guilty in exchange for a lighter sentence.

       Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike
his parents, never became an American citizen, and though he did eventually plead guilty, he did
so only after his lawyer assured him that he would not be subject to deportation—“removal,” in
the argot of contemporary immigration law. This advice was wrong: possession of ecstasy with
intent to distribute is an “aggravated felony,” rendering Lee deportable.           See 8 U.S.C.
§§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Lee understandably does not want to be deported, and he
filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he
received ineffective assistance of counsel.

       We evaluate claims of ineffective assistance of counsel using the familiar two-prong test
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) Was the attorney’s
performance deficient? And (2) did the deficient performance prejudice the defense? The
government concedes that Lee has satisfied the first prong, so the only question we have to
decide on this appeal is whether Lee has met the high bar of demonstrating prejudice. See id. at
693–95. To prevail, he must show “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). “The test is objective, not subjective; and thus, ‘to obtain relief on this
type of claim, a petitioner must convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.’” Pilla v. United States, 668 F.3d 368, 373
(6th Cir. 2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
No. 14-5369                         Lee v. United States                         Page 3


       Whether Lee has satisfied this standard is not immediately obvious. On the one hand, the
district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly
erroneous, and deportation would have followed just as readily from a jury conviction as from a
guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain
nothing from going to trial but more prison time. On the other hand, for those such as Lee who
have made this country their home for decades, deportation is a very severe consequence, “the
equivalent of banishment or exile,” as the Supreme Court memorably put it. Delgadillo v.
Carmichael, 332 U.S. 388, 391 (1947). As a factual matter, we do not doubt Lee’s contention
that many defendants in his position, had they received accurate advice from counsel, would
have decided to risk a longer prison sentence in order to take their chances at trial, slim though
they were.

       But would such a decision be “rational”? Several courts, including this circuit, have said
“no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to
prejudice. See Pilla, 668 F.3d at 373; Haddad v. United States, 486 F. App’x 517, 521–22 (6th
Cir. 2012); see also, e.g., Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United
States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); United States v. Kayode, 777 F.3d 719,
724–29 (5th Cir. 2014).

       Others have reached the opposite conclusion. See, e.g., United States v. Orocio, 645 F.3d
630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, 133 S. Ct.
1103 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v.
Rodriguez-Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d
1230, 1234 (11th Cir. 2015).

       We have no ability, of course, as a panel, to change camps. And in that sense, this is a
straightforward case. In Pilla we held that no rational defendant charged with a deportable
offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a
plea deal with a shorter prison sentence. 668 F.3d at 373. Lee finds himself in precisely this
position, and he must therefore lose. But given the growing circuit split (which, as best we can
tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that
No. 14-5369                             Lee v. United States                          Page 4


our approach is the right one and to set out the role that we believe deportation consequences
should play in evaluating prejudice under Strickland.

          We begin, however, by giving the other side its due. As the Seventh Circuit noted in
DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does
it guarantee a guilty verdict. 790 F.3d at 779. The second point is especially true for defendants
such as Lee, since it is well documented that many jurors are willing to acquit those charged with
a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D.
Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment,
in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds.,
2010)).

          This possibility, at least according to many of this nation’s founders, is not a defect, but a
feature of the jury system. See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850)
(“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best
understanding, judgment, and conscience, though in direct opposition to the direction of the
court.” (Diary Entry, February 12, 1771)). Indeed, the unreviewable power of juries to acquit,
despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in
criminal cases was enshrined in the Constitution. See Rachel E. Barkow, Criminal Trials, in The
Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd
ed. 2014). For the framers and ratifiers, the memory of how King George III had prevented
colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of non-
jury courts” was still fresh. Id. at 340. And one of the grievances listed in the Declaration of
Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by
Jury.” Declaration of Independence para. 20 (U.S. 1776). It is thus not surprising that nearly all
commentators active during the time of the founding favored the inclusion in the new
Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander
Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001)
(“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur
No. 14-5369                                 Lee v. United States                                  Page 5


at least in the value they set upon the trial by jury.”).1 By codifying the right to a jury trial in
criminal cases, the Constitution secured a key role for “the People”—specifically, the people “of
the State and district wherein the crime shall have been committed,” U.S. Const. amend. VI—in
the judicial process, providing an effective check on the ability of oppressive and distant
legislators, overzealous prosecutors, and unfair judges to contravene local sentiment.

         This attitude towards juries has long since fallen into disfavor, but the use of juries has
not. Nor has it ceased to be true that, as G.K. Chesterton once noted, we rely on juries not
because they are made up of legal experts, but precisely because they are not. See G.K.
Chesterton, The Twelve Men, in Tremendous Trifles 80, 86–87 (1909), available at
http://www.chesterton.org/twelve-men/. As he put it,

         Our civilisation has decided, and very justly decided, that determining the guilt or
         innocence of men is a thing too important to be trusted to trained men. [When it]
         wishes for light upon that awful matter, it asks men who know no more law than I
         know, but who can feel the things that I felt in the jury box.

Id.

         We nevertheless respectfully disagree with our colleagues on the Seventh Circuit that
jury nullification may be considered when evaluating whether a petitioner has shown Strickland
prejudice. We reach this conclusion for the straightforward reason that Strickland itself has
taken the matter out of our hands: “A defendant has no entitlement to the luck of a lawless
decisionmaker.” 466 U.S. at 695. And we must therefore exclude from our analysis “the
possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” Id. Such possibilities,
real as they are, “are irrelevant to the prejudice inquiry” under Strickland. Id. Unfortunately for
Lee, “the luck of the lawless decisionmaker” is all he has going for him. Nothing in the record
suggests that he would have been acquitted at trial, cf. Hill, 474 U.S. at 59–60, or would have
been able to obtain a conviction for an offense that did not require deportation, cf. Missouri v.
Frye, 132 S. Ct. 1399, 1409–10 (2012); Kovacs, 744 F.3d at 51–52.



         1
            This high regard for juries dovetails with eighteenth-century jurists’ dislike of guilty pleas. Blackstone,
for example, said that courts were usually “very backward in receiving and recording” them and should usually see
to it that they were withdrawn. 4 William Blackstone, Commentaries *329.
No. 14-5369                          Lee v. United States                         Page 6


       Similarly, while we recognize the possibility that the prosecutor might have agreed to
allow Lee to plead guilty to a non-deportable offense if his attorney had pursued the matter, this
is sheer speculation. Again, there is nothing in the record before us indicating that such an
attempt would have changed the ultimate outcome of Lee’s case. See Hill, 474 U.S. at 59.

       Lee, together with the courts that have reached the opposite conclusion, counters that
deportation changes the calculus because “[p]reserving the client’s right to remain in the United
States may be more important to the client than any potential jail sentence.” Orocio, 645 F.3d at
645 (quoting Padilla, 559 U.S. at 368) (internal quotation marks and emphasis omitted; brackets
in original). This statement is true enough. And we agree that a “reasonable” non-citizen
charged with a deportation-triggering offense will, if properly advised, consider deportation
consequences in deciding whether to plead guilty and might, as a result, be willing to go to trial
even if he faces a low probability of success, one that might lead a citizen to accept a plea. This
consideration is thus a “special circumstance[]” relevant to the prejudice inquiry. Hill, 474 U.S.
at 60. But it does not follow from this that a decision to reject a plea deal that would trigger
deportation consequences is ipso facto “rational under the circumstances” regardless of the
merits of the defense.

       To begin with, there is no way to square such a conclusion with Strickland’s admonition
that courts may not consider jury nullification or happenstance when deciding whether a
petitioner has demonstrated prejudice. Lee’s reasoning, moreover, takes the quotation from
Padilla out of context: when Padilla emphasized the importance of deportation consequences to
the plea calculus, it did so in the context of analyzing the deficient-performance prong, not the
prejudice prong. This is significant because the Court declined to craft a deportation-specific
prejudice rule to go along with its deportation-specific performance rule. Indeed, it declined to
do so even though the claimant in that case, like Lee, had lived in the United States legally for
decades and had alleged that “he would have insisted on going to trial if he had not received
incorrect advice from his attorney.” Padilla, 559 U.S. at 359. While this is much the same as
the statements that other courts have held sufficient to show prejudice, see, e.g., Hernandez,
778 F.3d at 1234, the Supreme Court not only declined to decide the point, but it also
emphasized “the fact that it is often quite difficult for petitioners who have acknowledged their
No. 14-5369                              Lee v. United States                     Page 7


guilt to satisfy Strickland’s prejudice prong.” 559 U.S. at 371 n.12. The Court had no reason to
say this if Lee’s approach is correct.

       Indeed, that approach would elide the difficult task of showing prejudice entirely since it
would provide those in Lee’s position with a ready-made means of vacating their convictions
whenever they can show that counsel failed to adequately explain deportation consequences.
The government may find it harder to re-prosecute (and eventually to deport) given the lapse of
time, and it may have less motivation to do so since the claimant will have already served a
prison sentence. This would geld the “strong presumption” against ineffective-assistance claims,
Strickland, 466 U.S. at 696, and it is out of step with the rule that prejudice requires showing a
“substantial, not just conceivable,” chance of a different result, Harrington v. Richter, 562 U.S.
86, 112 (2011). Further, if Lee is right, might not competent defense counsel decide in some
cases that acting incompetently is better? Cf. DeBartolo, 790 F.3d at 780. That possibility
weighs against Lee’s approach, as the Supreme Court has made clear that ineffective-assistance
claims must not “threaten the integrity of the very adversary process the right to counsel is meant
to serve.” Harrington, 562 U.S. at 105.

       In other words, the merits matter. And we therefore join the Second, Fourth, and Fifth
Circuits in holding that a claimant’s ties to the United States should be taken into account in
evaluating, alongside the legal merits, whether counsel’s bad advice caused prejudice. See, e.g.,
Kovacs, 744 F.3d at 52; Akinsade, 686 F.3d at 255–56; Kayode, 777 F.3d at 725. The problem
for Lee is that he has no bona fide defense, not even a weak one. Thus, despite his very strong
ties to the United States, he cannot show prejudice.

       In reaching this conclusion, we should not be read as endorsing Lee’s impending
deportation. It is unclear to us why it is in our national interests—much less the interests of
justice—to exile a productive member of our society to a country he hasn’t lived in since
childhood for committing a relatively small-time drug offense. But our duty is neither to
prosecute nor to pardon; it is simply to say “what the law is.” Marbury v. Madison, 5 U.S. 137,
177 (1803). Having discharged that duty, we affirm the district court’s denial of Lee’s § 2255
motion to vacate his conviction and sentence.
