                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 23 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-16796

              Plaintiff-Appellee,                D.C. No.
                                                 2:07-cr-00139-WBS-AC-1
 v.

RICHARD NUWINTORE,                               MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                     Argued and Submitted December 14, 2016
                             San Francisco, California

Before: KOZINSKI, BYBEE, and N.R. SMITH, Circuit Judges.

      Richard Nuwintore appeals the district court’s dismissal of his petition for

writ of error coram nobis that he filed to vacate his guilty plea. We review the

district court’s denial of the writ de novo, United States v. Riedl, 496 F.3d 1003,

1005 (9th Cir. 2007), and now reverse and remand for an evidentiary hearing.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Nuwintore claims that his trial counsel was constitutionally ineffective by

allegedly failing to advise him of the immigration consequences of pleading guilty

to access device fraud with losses over $10,000. To succeed on this claim,

Nuwintore must show that (1) his counsel’s performance fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for

counsel’s alleged errors, Nuwintore would have negotiated a better plea deal or

gone to trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); United

States v. Rodriguez-Vega, 797 F.3d 781, 786, 788 (9th Cir. 2015).

      1.     Taking Nuwintore’s allegations and evidence as true, as we must at

this stage of the proceedings, Nuwintore has sufficiently shown that his counsel

was ineffective by (1) failing to apprise Nuwintore that he would not be subject to

automatic removal if he pleaded guilty to a loss of less than $10,000, and (2)

neglecting to mention that even though Nuwintore might avoid actual removal, he

would be charged with removability and suffer a loss of his asylum status. The

immigration consequences of admitting a loss over $10,000 were “succinct, clear,

and explicit,” Padilla v. Kentucky, 559 U.S. 356, 368 (2010), as well as “virtually

certain,” Rodriguez-Vega, 797 F.3d at 786–87. See 8 U.S.C. § 1158(b)(2)(A)(ii),

B(i) (providing that asylum status must be revoked if the Attorney General

determines that the alien was “convicted . . . of a particularly serious crime” which


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includes a “convict[ion] of an aggravated felony”); id. § 1101(a)(43)(M)(i)

(providing that a fraud offense causing losses over $10,000 constitutes an

aggravated felony). Accordingly, counsel was obligated to both explain to

Nuwintore the significance of the $10,000 threshold as well as that he would lose

his asylum status if he pleaded guilty to causing losses over $10,000.

      2.     Nuwintore’s allegations and evidence also show a reasonable

probability that Nuwintore could have negotiated a plea deal with admitted losses

of less than $10,000 or would have gone to trial. Had the government offered such

a plea agreement, the immigration consequences would have been different. See

Nijhawan v. Holder, 557 U.S. 29, 42 (2009). Even assuming that the government

would have refused to enter into an agreement with stipulated losses of less than

$10,000, we must credit Nuwintore’s assertion that he would have gone to trial to

avoid automatic removal proceedings. Accordingly, we must reverse and remand

for an evidentiary hearing.1

      REVERSED.




      1
       We note that Nuwintore might well regret obtaining coram nobis relief. If
the government chooses to try him, he may suffer the same or worse immigration
consequences as well as serve a longer sentence. The choice, of course, is
Nuwintore’s, and we anticipate that counsel will properly advise him of the risks.
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                                                                              FILED
United States v. Nuwintore
                                                                              MAY 23 2017
No. 15-16796
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
Judge N.R. Smith, dissenting.

      I respectfully dissent from the majority’s conclusion that defense counsel’s

performance fell below an objective standard of reasonableness as previously

defined by precedent.

      First, under United States v. Rodriguez-Vega, 797 F.3d 781, 786 (9th Cir.

2015), to meet the objective standard of reasonableness when the defendant is a

non-citizen, defense counsel must advise the defendant of the immigration

consequences of any criminal charges pending against the defendant. More

specifically, “where the law is ‘succinct, clear, and explicit,’ that [a] conviction

renders removal virtually certain, counsel must advise his client that removal is a

virtual certainty.” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 368–69 (2010)).

In addition, defense counsel must “advise the client of ‘the advantages and

disadvantages of a plea agreement.’” Padilla, 559 U.S. at 370–71 (quoting Libretti

v. United States, 516 U.S. 26, 50–51 (1995)).

      According to Nuwintore’s own affidavits, his defense counsel spoke to him

before the change of plea hearing about the immigration consequences of the plea

deal he was presented. Defense counsel specifically showed him the portion of the



                                            1
written plea agreement that stated, “because defendant is pleading guilty to access

device fraud with a loss amount over $10,000, removal is presumptively

mandatory.” This satisfied the requirements of our precedent.

      To reach this decision, the majority strays from our well-established

precedent, expands the responsibilities of defense counsel, and suggests that

defense counsel must discuss with the client plea deals that were never even

offered by the government. Our precedent does not require that defense counsel

advise his or her client regarding what other potential government plea deals (not

ever offered by the government) will allow the defendant to avoid deportation—or

all other immigration consequences. And explaining the advantages and

disadvantages of a particular plea agreement the government offered to the

defendant does not necessarily entail explaining the advantages and disadvantages

of every other possible plea agreement.

      Second, the majority faults defense counsel for neglecting to mention that

Nuwintore would suffer a loss of his asylum status pursuant to 8 U.S.C.

§ 1158(b)(2)(A)(ii), B(i). Nuwintore never asserts that counsel’s failure to inform

him specifically about the effect on his asylum status amounted to ineffective

assistance of counsel. Nuwintore does assert that he believed his “political asylum

status would prevent deportation or removal.” Consistent with this belief, an

                                          2
immigration judge granted his application for withholding of removal based on his

past persecution and likely future persecution. I cannot join a disposition

determining that defense counsel provided ineffective assistance to Nuwintore on

grounds he never asserted.




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