                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 6 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   16-15656

                Plaintiff-Appellee,             D.C. Nos.    3:14-cv-00484-WHO
                                                             3:10-cr-00557-WHO-1
 v.

FLAVIO DE MORAIS,                               MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                       for the Northern District of California
                 William Horsley Orrick, District Judge, Presiding

                           Submitted October 11, 2017**
                             San Francisco, California

Before: THOMAS, Chief Judge, and REINHARDT and O’MALLEY,*** Circuit
Judges.

      Flavio de Morais appeals from the district court’s order denying his motion

to vacate his conviction under 28 U.S.C. § 2255 for ineffective assistance of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Kathleen M. O'Malley, United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
counsel. De Morais, a legal permanent resident, pled guilty to mail fraud in

violation of 18 U.S.C. § 1341, a conviction which rendered him deportable.      De

Morais’s sole argument on appeal is that his retained counsel, Hugh Levine,

provided ineffective assistance under Strickland v. Washington, 466 U.S. 668

(1984), by failing to propose a specific alternative plea that would not have

rendered De Morais deportable.       We have jurisdiction pursuant to 28 U.S.C.

§§ 1291, 2253, and 2255.       Because Levine conducted the plea negotiations

competently, and because De Morais has in any case failed to show prejudice from

Levine’s purported deficient performance, we affirm.

                                         I.

      In 2010, following Levine’s advice, De Morais pled guilty to mail fraud in

violation of 18 U.S.C. § 1341, an offense which rendered him deportable under 8

U.S.C. § 1227(a)(2)(A)(i), as a crime involving moral turpitude, and under 8

U.S.C. § 1227(a)(2)(A)(iii), as an aggravated felony. Before and after his plea, De

Morais cooperated extensively with the government, and in return the government

moved the district court to depart downward from the Sentencing Guidelines in

sentencing De Morais. The district court granted that request in 2011 by imposing

a noncustodial sentence of three years’ probation and ordering De Morais to pay

$161,149 in restitution, jointly and severally with two other defendants.

      In 2014, De Morais moved the district court to vacate his conviction under



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§ 2255, claiming primarily that Levine provided ineffective assistance by failing to

advise De Morais of the immigration consequences of his plea. After holding two

evidentiary hearings, the district court denied the motion, concluding that Levine

informed De Morais of the virtually certain immigration consequences of pleading

guilty to mail fraud and competently attempted to help De Morais avoid those

consequences. Narrowing his position, De Morais argues on appeal that Levine

rendered ineffective assistance because he failed to seek an alternative plea to theft,

embezzlement, or misapplication by a bank officer or employee in violation of 18

U.S.C. § 656. De Morais contends that a conviction under § 656 would not have

rendered him deportable because it is neither a crime involving moral turpitude nor

an aggravated felony.

                                         II.

      We review a district court’s denial of a § 2255 motion de novo, and we

review its factual findings for clear error. United States v. Aguirre-Ganceda, 592

F.3d 1043, 1045 (9th Cir. 2010). “We may affirm on any ground supported by the

record even if it differs from the rationale of the district court.” Washington v.

Lampert, 422 F.3d 864, 869 (9th Cir. 2005).

       “[T]he two-part Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985). A petitioner claiming ineffective assistance of counsel must show both



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deficient performance and prejudice. Strickland, 466 U.S. at 687–88, 694.

      “To establish deficient performance, a person challenging a conviction must

show that ‘counsel’s representation fell below an objective standard of

reasonableness.’”   Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

Strickland, 466 U.S. at 688). The court considering the challenge “must apply a

‘strong presumption’ that counsel’s representation was within the ‘wide range’ of

reasonable professional assistance.” Id. (quoting Strickland, 466 U.S. at 689).

When a conviction carries with it “clear” deportation consequences for a

noncitizen defendant, however, counsel has “the duty to give correct advice”

regarding those consequences. Padilla v. Kentucky, 559 U.S. 356, 367–69 (2010).

      “With respect to prejudice, a challenger must demonstrate ‘a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Harrington, 562 U.S. at 104 (quoting

Strickland, 466 U.S. at 694). To establish prejudice in the plea bargaining context,

a petitioner must show a reasonable probability that “the outcome of the plea

process would have been different with competent advice.” Lafler v. Cooper, 566

U.S. 156, 163 (2012) (citations omitted).

                                       III.

      Levine’s performance was not deficient.       The district court found that

Levine was well aware that a conviction for mail fraud would render De Morais



                                            4
deportable. The district court also found that, before Levine advised De Morais to

plead guilty to the mail fraud charge, Levine repeatedly attempted to negotiate with

the government to change the offense of conviction from mail fraud, but the

government repeatedly refused. We see no error in these findings.

      De Morais focuses on the fact that the only alternative offense of conviction

that Levine proposed in these negotiations was misprision of a felony in violation

of 18 U.S.C. § 4. De Morais argues that Levine failed to take the opportunity to

suggest to the government that De Morais plead guilty to aiding and abetting bank

theft in violation of 18 U.S.C. § 656.       But, at the district court’s evidentiary

hearing, Levine testified about a phone call with a government prosecutor where

the prosecutor informed Levine that the government would only accept a plea to

mail fraud or wire fraud. Levine also testified that he had considered and rejected

all of the other offenses that arguably may have been applicable, including § 656.

Given this testimony and the absence of any authority indicating that § 656 is

applicable to De Morais, the record does not support the conclusion that Levine

failed to advocate for De Morais competently and diligently throughout the plea

negotiations. Under the circumstances, Levine’s performance was well within “the

‘wide range’ of reasonable professional assistance.” Harrington, 562 U.S. at 104

(quoting Strickland, 466 U.S. at 689).

      Even assuming for the sake of argument that Levine provided ineffective


                                         5
assistance by failing to raise the possibility of pleading to a violation of § 656, De

Morais has failed to show prejudice from that failure. De Morais has adduced no

evidence suggesting that the government would have been receptive to such a

suggestion; to the contrary, as discussed above, Levine testified that the

government would not accept any plea other than mail fraud or wire fraud. De

Morais argues that the government might have been open to negotiation because he

cooperated and because § 656 carries a higher maximum penalty than the actual

crime of conviction. This is no more than speculation, however.

      In any case, a conviction under § 656 still may have rendered De Morais

deportable. Theft offenses involving the intent to deprive the owner of possession

permanently may be crimes of moral turpitude that render the defendant deportable

under 8 U.S.C. § 1227(a)(2)(A)(i). See Alvarez-Reynaga v. Holder, 596 F.3d 534,

537 (9th Cir. 2010) (holding that a conviction for a theft offense under California

law was not a crime of moral turpitude because “[t]here [was] no evidence in the

record establishing that [the defendant’s] offense involved an intent to deprive the

owner of possession permanently”). And, although not every violation of § 656

constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), a violation

with intent to defraud does. Carlos-Blaza v. Holder, 611 F.3d 583, 589 (9th Cir.

2010).

      Given the government’s insistence that De Morais plead guilty to a crime


                                          6
involving fraud, De Morais cannot demonstrate a reasonable probability that the

government would have accepted a plea to a violation of § 656 that did not include

an admission of intent to defraud. Nor has De Morais suggested that he intended

to return the money he obtained illegally. A conviction under § 656 likely would

have qualified as a crime of moral turpitude or an aggravated felony, and it likely

would have rendered De Morais deportable. De Morais, in sum, has not shown a

reasonable probability that the outcome of the plea negotiations would have been

different if Levine had conducted them differently.

                                       IV.

      The district court’s denial of De Morais’s motion under 28 U.S.C. § 2255 to

vacate his conviction is AFFIRMED.




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