United States v. Sun Hwang

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 04 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 15-16334

Plaintiff - Appellee, D.C. No. 1:15-cv-00072-DKW-BMK 1:13-cr-01065-DKW-12 v.

SUN HWANG, AKA Sunny, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted June 14, 2016 Honolulu, Hawaii

Before: THOMAS, Chief Judge and CALLAHAN and MURGUIA, Circuit Judges.

Sun Hwang appeals the district court’s denial of her motion for relief under

28 U.S.C. § 2255. We reverse.

We review a district court’s denial of relief under 28 U.S.C. § 2255 de novo.

United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc).

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Hwang pled guilty to aiding and abetting an illegal gambling enterprise in

violation of 18 U.S.C. § 1955. Before Hwang pled guilty, her lawyer contacted

two immigration attorneys to determine…

MEMORANDUM *

Sun Hwang appeals the district court’s denial of her motion for relief under 28 U.S.C. § 2255 . We reverse.

We review a district court’s denial of relief under 28 U.S.C. § 2255 de novo. United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc).

Hwang pled guilty to aiding and abetting an illegal gambling enterprise in violation of 18 U.S.C. § 1955 . Before Hwang pled guilty, her lawyer contacted two immigration attorneys to determine the immigration consequences of a guilty plea. One attorney told Hwang’s lawyer that a guilty plea under § 1955 would invariably *876 result in removal, with no option for discretionary relief. The other attorney believed that Hwang would be eligible for discretionary relief. Hwang’s lawyer conveyed both viewpoints to Hwang, but he did not say which viewpoint he believed to be correct. Rather, in his words, he “never gave Ms. Hwang any immigration advice in regard to her case.” Hwang pled guilty without a plea agreement and was later sentenced to three years of probation.

After sentencing,- the Department of Homeland Security initiated removal proceedings. An immigration judge determined that Hwang had been convicted of an…

dissenting:

I respectfully dissent. I do not read Padilla v. Kentucky, 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), as altering the two-prong standard for measuring ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct 2052 , 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel’s performance was deficient ,,. and [s]econd, the defendant must show that the deficient performance prejudiced the defense.” Id. at 686 , 104 S.Ct. 2052 .

Hwang’s attorney, not being well-versed in immigration law, sought and obtained the advice of not one, but two immigration lawyers, and passed their advice on to Hwang, It is not clear what more counsel should have done.

The Supreme Court instructs that “[j]udical scrutiny of counsel’s performance must be highly deferential,” we must make “every effort be made to eliminate the distorting effects of hindsight,” and “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 689-90 , 104 S.Ct. 2052 . Properly viewed, Hwang has not shown that her attorney’s performance was deficient.

Certainly, the…