                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 15-7616


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

PHILIP SWABY,

                    Defendant - Appellant.




                                      No. 15-7621


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

PHILIP SWABY,

                    Defendant - Appellant.


Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:11-cr-00607-RDB-2; 1:15-cv-02657-RDB)


Argued: December 7, 2016                                       Decided: April 24, 2017
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.


Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Wynn and Judge Thacker joined.


ARGUED: Bradley Nelson Garcia, O’MELVENY & MYERS LLP, Washington, D.C.,
for Appellant.    Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jeremy Maltby,
David K. Roberts, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.




                                        2
GREGORY, Chief Judge:

       Philip Swaby brings a Sixth Amendment ineffective assistance of counsel

challenge to his conviction, which led to his deportation as an aggravated felon. While

Swaby’s counsel provided deficient performance, the district court determined that the

deficient performance did not prejudice his defense because the court corrected his

counsel’s deficiencies. For the reasons below, we reverse the district court’s dismissal,

grant Swaby’s habeas petition, and remand for further proceedings.



                                             I.

                                            A.

       Philip Swaby is a citizen of Jamaica, and had been a lawful permanent resident of

the United States since June 6, 2001. He is married to a U.S. resident, has two daughters

who are U.S. citizens, and acts as a father to his wife’s daughter from a prior marriage.

       On November 10, 2011, Swaby and his then-girlfriend, now-wife, Ms. Robinson,

were indicted for trafficking in counterfeit goods under 18 U.S.C. § 2320 and conspiracy

to traffic in counterfeit goods. According to the indictment, Swaby and Robinson sold

counterfeit merchandise from a store called Fashion Trendz. They had counterfeit purses,

handbags, and other merchandise; counterfeit labels for expensive brand names; and

generic merchandise bearing no labels.

       Peter Ward served as Swaby’s appointed counsel. Ward immediately recognized

that “immigration status would be a significant consideration” for Swaby, who had a

green card and intended to apply for U.S. citizenship. J.A. 147. And from the beginning


                                             3
of the representation, Swaby “[wa]s concerned and ha[d] always been concerned about

his immigration status.” J.A. 83.

       Under federal immigration law, any alien convicted of an “aggravated felony” is

deportable. 8 U.S.C. § 1227(a)(iii). Aliens rendered deportable because of an aggravated

felony are ineligible for asylum or cancellation of removal. Moncrieffe v. Holder, 133 S.

Ct. 1678, 1682 (2013).      Indeed, deportation is so likely for those convicted of an

aggravated felony that it is akin to “mandatory deportation.” United States v. Akinsade,

686 F.3d 248, 254 (4th Cir. 2012). One such aggravated felony that triggers mandatory

deportation is an offense involving counterfeiting for which the term of imprisonment is

greater than one year. 8 U.S.C. § 1101(a)(43)(R). A second aggravated felony is one

that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”

8 U.S.C. § 1101(a)(43)(M)(i).

       Recognizing that he lacked expertise in immigration law, Ward contacted Mary

Ann Berlin, an immigration lawyer, for advice.         He sent her a copy of Swaby’s

indictment and the relevant criminal statute.

       Berlin immediately recognized that Swaby needed to avoid conviction of an

aggravated felony. She first advised Ward that Swaby’s sentence must be under one year

in order to avoid categorization as an aggravated felony. When looking at the criminal

counterfeiting statute, she saw that 18 U.S.C. § 2320(a)(2) prohibited trafficking of

counterfeit merchandise “the use of which is likely . . . to deceive.”        Conversely,

§ 2320(a)(1) lacked any “deceit’ or “fraud” language, and thus would not be an

aggravated felony for immigration purposes under 8 U.S.C. § 1101(a)(43)(M)(i). She


                                                4
advised Ward accordingly, and based on this advice Ward negotiated a plea agreement

where Swaby would plead guilty to 18 U.S.C. § 2320(a)(1) and agree to pay $14,220 in

restitution. His sentence was 364 days long.

       Unfortunately, Berlin had looked at an amended version of § 2320(a)(1) that did

not apply to Swaby’s case. 1 Based on the version of the statute applicable to Swaby’s

case, 18 U.S.C. § 2320(a)(1)’s language included deception.            As a result, Swaby

unknowingly pleaded to an aggravated felony that rendered him automatically

deportable.

       Swaby’s plea agreement bore the broad warning about immigration consequences

that is common to many plea agreements:

              By pleading guilty, the Defendant will also be giving up
              certain valuable civil rights and may be subject to deportation
              or other loss of immigration status. . . . [C]onviction for a
              broad range of crimes can lead to adverse immigration
              consequences, including automatic removal from the United
              States. . . . Defendant understands that no one, including his
              attorney or the Court, can predict with certainty the effect of a
              conviction on immigration status. Defendant nevertheless
              affirms that he wants to plead guilty regardless of any
              potential immigration consequences.

J.A. 34. And at Swaby’s plea hearing, the district court recited the warning commonly

heard at such proceedings:      “You should understand that, by pleading guilty this

afternoon, you may be essentially doing something that will lead to your deportation or

removal from the United States.” J.A. 49. The district court also referenced potential

       1
         It is unclear from the record whether Ward sent Berlin an erroneous version of
the statute. But regardless, it is clear that Ward never checked Berlin’s advice against the
correct version of the statute.


                                             5
removal from the United States when informing Swaby of the many collateral

consequences Swaby may endure because he pleaded to a felony charge. J.A. 60-61.

      Ward emphasized to the court that he consulted with Berlin about the plea

agreement’s immigration consequences, and that “the factors in the plea were arrived

[at]” based on those discussions. J.A. 64-65. While neither Ward nor the district court

could guarantee Swaby’s immigration consequences, the district court warned Swaby of

merely the “risk” of deportation. J.A. 66. Neither Ward nor the district court informed

Swaby that he was pleading to a crime that rendered him automatically deportable.

      Swaby pleaded guilty and was sentenced to 364 days of incarceration, $14,220 in

restitution payment, and three years of supervised release. But soon after Swaby was

released from prison, the Department of Homeland Security lodged an immigration

detainer against him and planned to deport him because he had pleaded to an aggravated

felony.

                                           B.

      While detained, Swaby filed a petition for a writ of coram nobis on March 20,

2015. He alleged that he received ineffective assistance of counsel during his criminal

proceedings, in violation of the Sixth Amendment. The district court found that Ward’s

reliance on an inapplicable version of the statute and reassurance that pleading guilty to

§ 2320(a)(1) would reduce Swaby’s risk of deportation was clearly wrong. J.A. 121.

And Ward’s error constituted deficient performance. But the district court found that

Ward’s deficient performance did not prejudice Swaby’s proceedings because the court

warned Swaby that his guilty plea could lead to his deportation, and thus remedied any


                                            6
misunderstanding that might have resulted from Ward’s deficient performance. J.A. 123-

24. As a result, the district court denied Swaby’s coram nobis petition.

       Swaby next filed a § 2255 habeas petition on September 9, 2015, alleging the

same constitutional violation. See J.A. 127. The district court treated this petition like a

second coram nobis petition because, although Swaby was still detained for immigration

purposes, Swaby was no longer incarcerated and therefore no longer “in custody.” J.A.

134 & n.2. For the same reasons as explained in the coram nobis petition, the district

court denied habeas relief. Swaby filed a timely notice of appeal from this denial.



                                            II.

       On appeal, the government argues that we lack jurisdiction over Swaby’s claim.

According to the government, Swaby’s coram nobis petition should have been treated

like a § 2255 habeas petition because he was in custody at the time of filing. As a result,

the government believes that we lack jurisdiction over Swaby’s titled § 2255 habeas

petition because it is an improper successive petition, and that we lack jurisdiction over

Swaby’s first petition because Swaby has not requested a certificate of appealability.

       A writ of coram nobis is an exceptional remedy that may be granted only when a

fundamental error has occurred and no other available remedy exists. United States v.

Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). Here, habeas was in fact available to

Swaby. As a result, Swaby could seek relief only through a habeas petition, and not

through a coram nobis petition.




                                             7
       The parties dispute whether habeas was available to Swaby, because the case law

is unclear if an individual under supervised release is still “in custody” after deportation.

But an applicant need only be “‘in custody’ when the application for habeas corpus is

filed.” 2 Carafas v. LaVallee, 391 U.S. 234 (1968). And “[a] prisoner on supervised

release is considered to be ‘in custody’ for the purposes of a § 2255 motion.” United

States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999). Here, Swaby was in the United

States, under supervised release and detained by immigration authorities, when he filed

both of his petitions. Thus, he was in custody, and habeas was available to Swaby when

he filed his coram nobis petition. As a result, we view Swaby’s first petition as an

invalid coram nobis petition, and his titled habeas petition as a valid habeas petition for

which Swaby has filed a notice of appeal. 3

       Swaby correctly notes that we are authorized to treat his timely notice of appeal as

a request for a certificate of appealability. A certificate of appealability may only be

issued when the applicant “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has rejected the

       2
        When an inmate is released from custody, a habeas petition may become moot.
But here, the collateral immigration consequences Swaby continues to suffer from
because of his federal felony conviction ensure his case is not moot. See Carafas v.
LaVallee, 391 U.S. 234, 237-38 (1968).
       3
         Like the district court was, we may treat Swaby’s coram nobis petition like a
habeas petition. See, e.g., Castro v. United States, 540 U.S. 375, 381 (2003) (noting that
federal courts are free to recharacterize a litigant’s postconviction motion to avoid
unnecessary dismissal, avoid inappropriately stringent application of formal labeling
requirements, or better express the motion’s legal basis). But we do not have to,
especially here where Swaby has filed, received a final judgment on, and timely appealed
a habeas petition on the same issue.


                                              8
applicant’s constitutional claim on the merits, an appellate court may issue a certificate of

appealability if the applicant “demonstrate[s] that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S 473, 484 (2000). For the reasons below, we find that reasonable

jurists would find the district court’s decision on Swaby’s Sixth Amendment claim

debatable or wrong. As a result, we issue a certificate of appealability, and therefore

have jurisdiction over Swaby’s petition.



                                            III.

       We next turn to the merits of Swaby’s Sixth Amendment claim. We review a

district court’s denial of habeas relief de novo. 4 Teleguz v. Pearson, 689 F.3d 322, 327

(4th Cir. 2012).

       To prevail on an ineffective assistance of counsel claim under the Sixth

Amendment, Swaby must show both that (1) his counsel was professionally unreasonable

and (2) his counsel’s deficient performance prejudiced Swaby’s defense. Strickland v.




       4
          The district court treated Swaby’s habeas petition like a second coram nobis
petition and adopted much of the district court’s analysis in Swaby’s original coram
nobis petition. Yet the district court’s coram nobis analysis is identical to an analysis
used for habeas petitions. Cf. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)
(“Because of the similarities between coram nobis proceedings and § 2255 proceedings,
the § 2255 procedure often is applied by analogy in coram nobis cases.”). The district
court received a habeas petition, reviewed the petition like a habeas petition, and denied
the petition. Therefore, we view the district court’s disposition as a dismissal of a habeas
petition on the merits.


                                             9
Washington, 466 U.S. 668, 691-92 (1984).          These are often called the “deficient

performance” and “prejudice” prongs of a Strickland inquiry.

                                             A.

       We first turn to the deficient performance prong. Counsel’s failure to advise a

client about “succinct, clear, and explicit” immigration consequences for a conviction is

constitutionally deficient performance under the Sixth Amendment. Padilla v. Kentucky,

559 U.S. 356 (2010). In Padilla v. Kentucky, Padilla’s counsel did not inform Padilla that

he was pleading to an aggravated felony that rendered him categorically deportable. Id.

at 368-69. And while immigration consequences can be complex, Padilla’s counsel could

have determined that Padilla’s crime was an aggravated felony “simply from reading the

text of the statute.” Id. at 368. His failure to do so, and his “false assurance” that the

conviction would not result in Padilla’s removal from the country, easily constituted

deficient performance.

       Swaby’s circumstances here are identical to Padilla’s, and similarly demonstrate

deficient performance. Like Padilla’s counsel, Ward failed to inform Swaby that, under

the plea agreement, Swaby would be pleading to an aggravated felony that would render

him categorically deportable. Like the error in Padilla, Ward only needed to read the

correct version of the statute to determine that the crime was an aggravated felony. And

like the false assurances Padilla’s counsel made, Ward structured the plea agreement to

avoid an aggravated felony and advised Swaby that the plea agreement presented only a

risk, but not a certainty, of deportation.




                                             10
       Effective representation by counsel requires that counsel provide correct advice

when the deportation consequences are clear. See id. at 369. Ward’s error--in providing

Berlin with the incorrect statute, failing to read the statute to verify Berlin’s advice, or

both--constitutes deficient performance under the Sixth Amendment.

                                            B.

       Swaby must also show that Ward’s deficient performance prejudiced Swaby’s

defense.   But a defendant cannot show prejudice if the district court corrects the

misadvice and the defendant understands the correction. United States v. Akinsade, 686

F.3d 248, 253 (4th Cir. 2012). Here, the parties dispute whether the district court’s

general warnings cured Ward’s deficient performance.           We hold that the court’s

warnings, which were general and referenced only a vague “risk” or possibility of

deportation, do not.

       In United States v. Akinsade, this Court found that the district court’s general

warnings of a risk of deportation did not correct the counsel’s deficient performance.

There, Akinsade pleaded guilty to one count of embezzlement after relying on his

counsel’s erroneous advice that the offense would not render him deportable. Id. at 250.

At the plea colloquy, the district court reviewed the potential collateral consequences to

Akinsade if he pleaded guilty to a felony, including the risk that he “could be deported.”

Id.   This Court recognized that a “careful explanation” specifically correcting the

misadvice may cure any prejudice the misadvice might have caused. Id. at 253-54. But a

“general and equivocal admonishment” about merely the risk of deportation is

insufficient to cure counsel’s erroneous advice that the defendant’s crime would not


                                            11
render him categorically deportable. Id. at 254. And in Akinsade, the district court’s

vague warning about only a risk of deportation failed to inform Akinsade that he faced

likely mandatory deportation by pleading to an aggravated felony. Id. Thus, the court’s

general and equivocal instruction did not cure counsel’s deficient performance because

Akinsade could not have known at the plea colloquy that his plea was for an aggravated

felony that led to categorical deportation.

       Swaby’s case is identical to Akinsade’s. Like in Akinsade, Swaby only received

general and equivocal admonishments about a risk of deportation. Neither Ward nor the

district court informed Swaby that he was pleading to an aggravated felony rendering him

categorically deportable. The court’s general, nonspecific warning that Swaby may face

immigration consequences and may be deported could not cure Ward’s deficient

performance.

                                              C.

       Having established that Swaby satisfies the deficient performance prong and that

the district court’s warning did not cure the deficient performance, we next turn to the

prejudice prong of the Strickland inquiry. A defendant satisfies this prong by showing

that his counsel’s deficient performance prejudiced his defense by “affect[ing] the

outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant is

prejudiced if “there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Id. Our sister circuits

have also, we believe correctly, recognized that a defendant is prejudiced if there is a

reasonable probability that the defendant could have negotiated a plea agreement that did


                                              12
not affect his immigration status. United States v. Rodriguez-Vega, 797 F.3d 781, 788-89

(9th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52-53 (2d Cir. 2014). We first

conclude that Swaby has shown a reasonable probability that he could have negotiated a

plea agreement that avoided immigration consequences. We next conclude that Swaby

has shown a reasonable probability that he would have gone to trial rather than accept the

plea agreement if he were aware of the agreement’s immigration consequences. As a

result, Swaby satisfies the prejudice prong of the Strickland analysis.

                                             1.

       We first examine whether Swaby has demonstrated a reasonable likelihood that he

could have negotiated a plea agreement that avoided immigration consequences. The

Second and Ninth Circuits have adopted the same metric by which to make this

assessment, and we adopt this standard.

       In Kovacs v. United States, the Second Circuit reviewed an immigrant’s coram

nobis petition seeking vacatur of his guilty plea because his attorney erroneously

informed him that the crime to which he pleaded guilty was not a deportable offense.

744 F.3d 44, 49-50 (2d Cir. 2014). After concluding that Kovacs satisfied the deficient

performance prong, the court turned to the prejudice inquiry. The court held that a

defendant was prejudiced if, “but for counsel’s unprofessional errors, there was a

reasonable probability that the petitioner could have negotiated a plea that did not impact

immigration status.” Id. at 52. To make this showing, Kovacs had to demonstrate both

his resolute intent to structure a plea agreement that avoided immigration consequences,

and a reasonable probability “that the prosecution would have accepted, and the court


                                             13
would have approved, a deal that had no adverse effect on [Kovacs’s] immigration

status.” Id.

       The Second Circuit found that Kovacs made this showing. It was apparent that

Kovacs had a “single-minded focus” in the plea negotiations on avoiding immigration

consequences. His attorney and the government also settled on the criminal charge

during plea negotiations “for the sole reason that [the attorney] believed it would not

impair Kovacs’ immigration status.” Id. at 53. These facts demonstrated a reasonable

probability that the prosecution and the court would have accepted a different plea

agreement that would not render Kovacs deportable. Id.

       In United States v. Rodriguez-Vega, the Ninth Circuit adopted the Second

Circuit’s reasoning. It initially determined that a defendant could show a reasonable

probability of negotiating a better plea agreement by identifying cases where the

government allowed a defendant who committed a similar crime to plead to a lesser, non-

deportable offense. 797 F.3d at 788. But it further stated that “[a] petitioner may also

demonstrate a reasonable probability [of negotiating a better plea] by showing that she

settled on a charge in a purposeful attempt to avoid an adverse effect on her immigration

status.” Id. at 789. Citing Kovacs, the Ninth Circuit found that Rodriguez-Vega made

this showing: Rodriguez-Vega rejected an initial plea bargain, and then accepted a later

bargain only after a particular removal provision was deleted and she had been advised

that she was less likely to be deported for a misdemeanor than a felony. Id.

       Here, Swaby’s negotiations displayed a similarly single-minded focus and similar

acquiescence by the government. As a result, Swaby has demonstrated a reasonable


                                            14
likelihood that he would have negotiated for, and the government would have been

amenable to, a plea agreement that had no immigration consequences. Like the counsel

in Kovacs and Rodriguez-Vela, Ward was aware of Swaby’s immigration concerns from

the outset of the case and structured the plea agreement with the sole purpose of avoiding

immigration consequences. J.A. 149-51. After receiving advice from Berlin, Ward

requested several changes aimed at avoiding Swaby’s immigration consequences,

including pleading to a different charge, reducing the sentence to 364 days, and

incorporating edits that removed fraud and deception language from the stipulation of

facts. And the government accepted all of Ward’s requests, except for Ward’s request to

reduce Swaby’s crime to “aiding and abetting.” J.A. 164. Swaby’s single-minded focus

in structuring the plea agreement to avoid immigration consequences, and the

government’s acquiescence to Ward’s many modifications, demonstrate that Swaby had a

reasonable likelihood of successfully negotiating a plea agreement that avoided

categorical deportation.

       Ward asserts that the government would not have acquiesced to a plea agreement

with under $10,000 in losses because he had asked the prosecution “in further

conversations” to reduce the loss amount below $10,000 and was rejected. J.A. 151. But

none of his plea negotiations in the record indicate that he raised the issue. J.A. 158-64.

And because Ward believed the plea agreement lacked language about fraud or deceit,

Ward could not have been on notice that the loss amount rendered Swaby’s crime an

aggravated felony. Given the government’s flexibility in Ward’s other, similarly aimed

requests, it is reasonably likely that the government may have agreed to a loss amount


                                            15
below $10,000 in exchange for other concessions had Ward known the full importance of

the loss amount.      This is especially true when even the government’s initial

communications stated that the plea agreement would seek a loss amount between

$10,000 and $30,000, and the ultimate plea agreement resulted in only $14,220 in

restitution.

       For these reasons, Swaby has demonstrated a reasonable likelihood that, but for

his counsel’s erroneous advice, he could have negotiated a different plea agreement. As a

result, Ward’s deficient performance prejudiced Swaby’s defense.

                                             2.

       Swaby alternatively can demonstrate prejudice by showing a reasonable likelihood

that, absent his counsel’s error, he would have gone to trial instead. To determine

Swaby’s reasonable likelihood of going to trial, we must look to the strength of the state’s

case “inasmuch as a reasonable defendant would surely take it into account.” Ostrander

v. Green, 46 F.3d 347, 356 (4th Cir. 1995), overruled on other grounds by O’Dell v.

Netherland, 95 F.3d 1214 (4th Cir. 1996). But likelihood of acquittal at trial is not the

only factor a defendant considers, especially when the offered plea carries considerable

collateral consequences. For example, this Court has found prejudice when the defendant

“had significant familial ties to the United States and thus would reasonably risk going to

trial instead of pleading guilty and facing certain deportation.” Akinsade, 686 F.3d at

255. And a defendant facing deportation may go to trial for a crime involving fraud or

deceit, despite overwhelming evidence of guilt, in order to assert that the crime’s

estimated loss was less than $10,000. See id. at 255-56.


                                            16
       In Akinsade, Akinsade’s guilty plea to one count of embezzlement by a bank

employee of $16,400 was an aggravated felony because it was a crime involving fraud or

deceit with a loss amount of more than $10,000. Had he known about the consequences

of his guilty plea, Akinsade and his attorney assert that Akinsade would have gone to trial

to dispute the alleged loss amount, and to argue that the loss amount attributable to his

crime was less than $10,000. Such a choice “is rational,” and this Court noted that it

“cannot conclude that a reasonable defendant in Akinsade’s shoes” would have acted

differently. Id. at 256.

       Swaby’s case is indistinguishable. Similar to Akinsade, Swaby alleges in a sworn

affidavit submitted with his coram nobis petition that he would have gone to trial rather

than plead guilty in order to avoid deportation. He specifically alleges that he would

have contested the loss amount, J.A. 101, which he asserts were rough estimates made

during plea negotiations and based on overly inflated values of brand marks unattached to

merchandise. And even more than Akinsade, Swaby has long familial ties to the United

States, including a wife and children. It is rational that a person in his situation, with

such strong connections to this country, would rather risk a trial to reduce the loss amount

than plead guilty and accept the certainty of deportation.

       The government asserts that no reasonable person in Swaby’s position would have

gone to trial because, based on the government’s evidence, Swaby likely would have




                                            17
been convicted and found guilty of a loss amount greater than $10,000. 5          But the

prejudice prong does not require a defendant to show that going to trial would have been

the best objective strategy or even an attractive option. It merely requires the defendant

to show a reasonable likelihood that a person in the defendant’s shoes would have chosen

to go to trial. The decision does not need to be optimal and does not need to ensure

acquittal; it only needs to be rational.

       Here, Swaby is a husband, a father, and had been a resident of the United States

since 2001. It is not only reasonably likely, it is unsurprising that Swaby, had he known

the true consequences of his guilty plea, would have taken any chance, no matter how

slim, to avoid deportation by going to trial than accept mandatory deportation from his

family and resident country. And here, Swaby’s likelihood of success was not minimal.

See, e.g., Lee v. United States, 825 F.3d 311, 313-14 (6th Cir. 2016) (describing, in

examining Strickland’s prejudice prong, circuit split on whether immigrant-defendant’s

desire to throw a “Hail Mary,” like a hope for jury nullification, at trial in hopes of


       5
          The government asserts that Swaby had no chance of reducing the loss amount
below $10,000 at trial. In addition to defending its estimates, including an estimate of
$8,804 by Coach for the number of counterfeit items seized, the government asserts that a
single counterfeit mark has the value of an authentic product. Thus, the 2,000 recovered
counterfeit marks must value more than $10,000. Appellee Br. 28 (citing J.A. 106). But
it is unclear how counterfeit marks, unattached to any merchandise and therefore lacking
any authentic comparator, can be assessed for lost value. Cf., e.g., United States v. Cone,
714 F.3d 197 (4th Cir. 2013) (mentioning unattached brand marks but determining only
whether particular products were counterfeit); United States v. Habegger, 370 F.3d 441
(4th Cir. 2004) (mentioning unattached brand marks but only discussing counterfeit
charges for counterfeit socks and T-shirts); Chanel, Inc. v. Banks, No. WDQ-09-845,
2011 WL 121700 (D. Md. Jan. 13, 2011) (unreported) (calculating, in civil suit, statutory
damages based on each counterfeit mark per type of goods sold).


                                            18
avoiding deportation is a rational decision that amounts to prejudice), cert. granted, 137

S. Ct. 614 (Dec. 14, 2016). 6     Therefore, Ward’s deficient performance prejudiced

Swaby’s defense because there was a reasonable likelihood he would have gone to trial.



                                           IV.

      For these reasons, Swaby’s Sixth Amendment right to effective counsel was

violated during his criminal proceedings. We reverse the district court’s denial of habeas

relief, vacate Swaby’s conviction, and remand for further proceedings consistent with this

opinion.



                                             REVERSED, VACATED, AND REMANDED




      6
         The Sixth Circuit characterizes this Court’s Akinsade decision as one holding
that a “Hail Mary” thrown at trial is not rational. But we have never so held.


                                            19
