De Morais v. United States
| Decision Date | 15 May 2015 |
| Docket Number | Case No. 10-cr-00557-WHO-1 |
| Court | U.S. District Court — Northern District of California |
| Parties | FLAVIO DE MORAIS, Petitioner, v. UNITED STATES, Respondent. |
In 2010, petitioner Flavio de Morais, a citizen of Brazil, pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341 and was sentenced to three years probation and $161,149 in restitution. This plea allows the government to institute removal proceedings to deport De Morais, a fate De Morais wished at all costs to avoid. He now moves to vacate his conviction under 28 U.S.C. § 2255 because he received ineffective assistance of counsel.
De Morais's guilt is beyond question: the issue is whether the outcome of the plea process would have been different if his attorney had provided competent advice regarding the immigration consequences of his guilty plea. The government argues that De Morais was not prejudiced by the advice he received and asks that I deny the motion. To the contrary, I find it reasonably probable on the record before me that plea negotiations correctly informed about the immigration consequences of pleading guilty to mail fraud would have resulted in a better outcome for De Morais. This case will proceed as outlined below.
De Morais was born in Brazil. De Morais Decl. ¶ 5 (Dkt. No. 64-1). He entered the United States lawfully in 2001, at the age of eighteen, and has lived in this country ever since. Id. ¶¶ 3, 5. He is a lawful permanent resident and is married to a United States citizen. Id.; Reply1-2.
In or around 2004, De Morais began working for a real estate business known as the Pan American Funding Group ("Pan American"). De Morais Decl. ¶ 7. Pan American was run by a Brazilian woman who was interested in De Morais as an employee because he, like many of her clients, spoke Portuguese. Id. As part of his work for Pan American, De Morais submitted real estate loan applications supported by fake documentation and other falsified data. Id. ¶¶ 7-8. In 2006, the same year he was granted lawful permanent resident status, De Morais left Pan American. Id. ¶¶ 5, 9. He states that he left "because [he] could no longer bring [him]self to do those dishonest things, and because [he] knew that at some point they would get caught." Id. ¶ 9.
De Morais was arrested by FBI agents on February 9, 2010. De Morais Decl. ¶ 10. He was told he had the right to remain silent and to an attorney, but he "admitted to everything [he] had done and told [the agents] everything [he] knew about the illegal activities which [he] had witnessed and in which [he] had participated." Id. ¶ 10; see also Weber Decl. ¶¶ 5-7 (Dkt. No. 70).1 The same day he was arrested, De Morais called a former Pan American associate on behalf of the FBI in an effort to obtain documents that would aid in the government's investigation. De Morais Decl. ¶ 10.
Id. De Morais acknowledges that WMC "lost well over $100,000" in connection with the underlying mortgage loans. Id. ¶ 14.2
De Morais retained Hugh Levine as defense counsel. De Morais Decl. ¶ 11. Levine told De Morais that he "knew the prosecutor and would be able to get a good deal." Id. When Levine learned that De Morais was not a United States citizen, he advised him to find an immigration attorney. Id. ¶ 12. De Morais subsequently retained Stephen Eckdish for this purpose. Id.
After consulting with Eckdish, Levine told De Morais that he could avoid deportation even if convicted of mail fraud. De Morais Decl. ¶ 13. Levine stated that so long as the court did not order restitution in an amount greater than $10,000, De Morais's immigration status would remain secure. Id. Levine advised De Morais to plead guilty to the mail fraud count and to cooperate with the government; in the meantime, Levine would attempt to convince the prosecutor to limit the restitution amount to $10,000 or less, or to allow De Morais to change his plea to another immigration-safe offense. Id. Levine "assured De Morais that he would get [him] a good deal, one that protected [his] immigration status." Id. On August 5, 2010, based on Levine's advice, De Morais pleaded guilty to mail fraud. Dkt. No. 30.
Sentencing was delayed for over a year while De Morais assisted the government in its investigations and prosecutions in several other cases involving people he had worked with at or through Pan American. De Morais Decl. ¶¶ 15-16. He also worked on a number of white collar crime cases that were unrelated to Pan American, including by participating in surreptitiously recorded telephone conversations and meetings and other undercover activities. Id. Based in part on De Morais's cooperation, the government was able to successfully prosecute several of DeMorais's former associates for crimes committed either at or in connection with Pan American. Id.
As sentencing approached, Levine informed De Morais that he had been unable to negotiate a limited restitution amount or a change of plea. De Morais Decl. ¶ 17. For the first time, Levine indicated that the amount of restitution ordered could exceed $10,000, and that De Morais's immigration status was in jeopardy. Id. De Morais told Levine that he "never would have agreed to plead guilty to the charged crime if [he] had known that [he] would be deported as a result," and that he would "accept an actual prison sentence if that would satisfy the prosecution and prevent [his] deportation." Id. Levine recommended that De Morais borrow $300,000 and pay off any losses to avoid any restitution order. Id. That way, Levine told De Morais, he would not face deportation as a result of his conviction. Id.
At the sentencing hearing, Levine asked that the restitution amount be limited to $10,000 or less so that De Morais would not be threatened with deportation. Sent. Tr. 8 (). Judge Ware disagreed and ordered $161,149 in restitution. Sent. Tr. 22; Dkt. No. 48 at 4. However, he sentenced De Morais to only three-years' probation, significantly less than the maximum sentence of 30 years imprisonment and $1 million dollar fine, and less than the government's proposed eight-months' home detention in addition to probation. See Sent. Tr. 5; Dkt. No. 48 at 4. He also stated on the record that he was "impressed with the degree of [De Morais's] cooperation," and that De Morais's "assistance to the government has shown commendable citizenship." Sent. Tr. 18, 23. Judge Ware indicated that he would recommend to the immigration authorities that De Morais not be deported. Sent. Tr. 23 ( ).3
Believing that the restitution amount determined his immigration status, De Morais appealed only the restitution portion of his sentence to the Ninth Circuit.4 De Morais Decl. ¶ 19. The appeal was unsuccessful. See United States v. De Morais, 488 F. Appx. 246 (9th Cir. 2012). On January 31, 2014, De Morais filed this motion to vacate his conviction under 28 U.S.C. § 2255. De Morais claims that Levine provided ineffective assistance of counsel by misadvising him on the immigration consequences of his guilty plea.5
Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255(a). The statute authorizes the sentencing court to grant relief if it concludes "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Id. If the court finds that relief is warranted, it must vacate and set aside the judgment, and then do one of four things: (1) discharge the prisoner, (2) resentence him, (3) grant a new trial, or (4) "correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
A district court "must grant a hearing to determine the validity of a petition brought under [section 2255] unless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (internal quotation marks omitted). In deciding whether to grant an evidentiary hearing, the district should determine whether, accepting the truth of the petitioner's...
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