                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 10-1526
                                    _______________

                            UNITED STATES OF AMERICA

                                            v.

                                   MEHAL MOTHON,

                                              Appellant
                                    _______________

                     On Appeal from the United States District Court
                               For the District of New Jersey
                     (D.C. Criminal Action No. 1-09-cr-00825-001)
                     District Judge: Honorable Joseph H. Rodriguez
                                     _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 11, 2011
                                  _______________

               Before: RENDELL, AMBRO, and FISHER, Circuit Judges

                            (Opinion filed: January 14, 2011)
                                   _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       Mehal Mothon pled guilty to food stamp fraud. He now raises an ineffective-

assistance-of-counsel claim, arguing that his counsel failed to advise him of the
immigration consequences of his plea until during his sentencing hearing. We reject his

claim because it is not properly presented on direct appeal.

       Mothon pled guilty to conspiracy to steal funds from the U.S. Department of

Agriculture (“USDA”) that were intended to provide food to the disadvantaged through

the Supplemental Nutrition Assistance Program (“SNAP”), formerly known as the Food

Stamp Program. Mothon owned a Citgo Food Mart in Westville, New Jersey, which he

operated as a licensed SNAP retailer. Over a several-year period, Mothon and his

employees exchanged cash for electronically received-SNAP benefits and kept about

50% of the cash on each transaction. Approximately $283,350.36 was fraudulently

credited to the Citgo account as if SNAP customers had purchased food from the store

when the qualifying sales had never been made.

       Mothon was sentenced to 18 months of imprisonment and restitution in the

amount of $283,350.36. Because Mothon is a legal permanent resident of the United

States but not a citizen, his plea made him subject to removal under the Immigration and

Nationality Act (the “Act”), as the loss amount is greater than $10,000 and his crime is

thus an aggravated felony under the Act. Mothon is currently incarcerated and removal

proceedings against him have begun.

       Mothon claims that his counsel did not realize that his plea could render him

subject to removal until after it was entered. This, he argues, was constitutionally

ineffective counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), for failing to

advise him of the immigration consequences of his plea agreement.



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       We have long established, however, that, but in rare instances, such a claim is

properly presented in a collateral proceeding under 28 U.S.C. § 2255, rather than on

direct appeal, “in order that the district court may create a sufficient record for appellate

review.” Government of Virgin Islands v. Forte, 806 F.2d 73, 77 (3d Cir. 1986). See also

United States v. Wise, 515 F.3d 207, 215 (3d Cir. 2008); United States v. Thornton, 327

F.3d 268, 271 (3d Cir. 2003).

       We thus reject Mothon’s claim and affirm his sentence, though we express no

opinion on the merits of his ineffective-assistance-of-counsel claim should he choose to

raise it in a timely collateral proceeding.




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