                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JULIO ROCHA,                                     No. 14-56908

              Petitioner - Appellant,            D.C. No. 2:12-cv-03797-CBM

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Central District of California
              Consuelo B. Marshall, Senior District Judge, Presiding

                       Argued and Submitted June 10, 2016
                              Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges and SEEBORG,** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.


                                                                                     1
      Appellant Julio Rocha (“Rocha”) appeals the denial of his petition for a writ

of error coram nobis seeking to vacate his prior convictions on the ground he

received ineffective assistance of counsel. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      A defendant who has fully served his sentence may invalidate his conviction

through a petition for a writ of error coram nobis. To qualify for such relief, Rocha

must show: “(1) a more usual remedy is not available; (2) valid reasons exist for

not attacking the conviction earlier; (3) adverse consequences exist from the

conviction sufficient to satisfy the case or controversy requirement of Article III;

and (4) the error is of the most fundamental character.” Hirabayashi v. United

States, 828 F.2d 591, 604 (9th Cir. 1987). The fourth element is solely at issue in

this appeal, and it may be satisfied if Rocha received ineffective assistance of

counsel. See United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005),

amended on reh’g, No. 03-50315, 2005 WL 1692492 (9th Cir. July 21, 2005), and

abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010).

      To succeed on his ineffective assistance claim, Rocha must show his

attorney’s representation “fell below an objective standard of reasonableness,” and

he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687–88

(1984). Under the standard prevailing in 2002, in the context of plea negotiations,

                                                                                       2
an attorney is deficient if he affirmatively misadvises a defendant regarding the

immigration consequences of pleading guilty. See Kwan, 407 F.3d at 1015–16.

      Rocha’s attorney, Michael S. Evans (“Evans”), did not render affirmative

misadvice. The key statement on which Rocha focuses is that Evans told him to

sign the plea agreement because “[i]t will help me not to be deported” given “we

were going to have, if anything, less than a year in prison”. Rocha insists that

advice was incorrect because his immigration status turned solely on the loss

amount, in particular, whether or not it exceeded $10,000, which rendered him an

aggravated felon and therefore automatically removable.

      Rocha, however, was not misled into thinking the agreement might provide

some help in avoiding deportation. Evans recognized if Rocha received a

probationary sentence—which is a possible sentence under one year contemplated

in the plea agreement—he likely could avoid the virtually automatic removal that

would be triggered if Rocha entered federal custody. To call this benefit of the

plea agreement accidental or illusory, as Rocha does, is strained. Indeed, the

agreement made it possible for Rocha to argue for probation, which is the result he

obtained. Further, to deconstruct the precise nature and forum for the promised

benefit, as Rocha presses, takes things too far, as Rocha acknowledged Evans

correctly advised him the agreement broadly would “help” or “allow” him to avoid

                                                                                      3
deportation.

      Rocha concedes Evans explained the convictions could subject him to

deportation and never promised Rocha at any time he would not be deported.

Accordingly, the district court concluded correctly there was no affirmative

misadvice, and did not err in denying Rocha’s petition for coram nobis relief.1



AFFIRMED.




      1
       As Rocha must satisfy both factors of Strickland, we need not reach
prejudice. See Kwan, 407 F.3d at 1014.

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