United States v. Philip Swaby
855 F.3d 233
| 4th Cir. | 2017Background
- Philip Swaby, a Jamaican lawful permanent resident with U.S. citizen children, pled guilty in 2011 to trafficking in counterfeit goods under 18 U.S.C. § 2320 and was sentenced to 364 days and restitution; plea led to DHS initiating deportation as an aggravated felon.
- Swaby’s appointed counsel, Peter Ward, understood immigration consequences were critical and consulted immigration attorney Mary Ann Berlin, who (based on an incorrect/amended statutory version) advised that pleading to § 2320(a)(1) would avoid aggravated-felony immigration consequences.
- Ward negotiated a plea to § 2320(a)(1), sought reductions and edits aimed at avoiding deportation, and advised Swaby that deportation was a risk but not certain; the plea colloquy repeated a general warning about possible immigration consequences but did not state the plea produced categorical deportability.
- The correct version of § 2320(a)(1) (applicable to Swaby) contained deception language, making the conviction an aggravated felony (triggering mandatory deportation); Ward failed to verify Berlin’s advice against the controlling statute.
- Swaby filed coram nobis and § 2255 petitions asserting ineffective assistance of counsel under the Sixth Amendment; district court found counsel deficient but concluded the court’s warnings cured any prejudice and denied relief.
- The Fourth Circuit reversed, holding Ward’s performance was constitutionally deficient and the district court’s general, equivocal warnings did not cure the misadvice; the court vacated the conviction and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s failure to correctly advise about deportation consequences was constitutionally deficient under Padilla | Swaby: Ward’s reliance on incorrect statutory advice and assurances that the plea would avoid deportation constituted deficient performance | Gov: Counsel consulted an immigration expert and the court warned about immigration risk, so performance was adequate | Held: Deficient — counsel should have determined deportation consequence from statute and failed to do so (Padilla governs) |
| Whether the district court’s general warnings at plea cured counsel’s misadvice (no prejudice) | Swaby: The court’s vague warnings about a risk of deportation did not correct the specific misadvice that the plea caused categorical deportation | Gov: The plea colloquy and warning satisfied any cure of prejudice | Held: Not cured — general/equivocal warnings insufficient to remedy erroneous assurance (Akinsade controls) |
| Whether Ward’s deficient performance prejudiced Swaby under Strickland (affecting plea decision) | Swaby: There was a reasonable probability he could have (a) negotiated a non-deportable plea or (b) insisted on going to trial to avoid deportation given family ties and disputed loss amount | Gov: Evidence showed low chance of reducing loss below $10,000 or prevailing at trial, so no reasonable probability of different outcome | Held: Prejudice established — reasonable likelihood of obtaining a different plea or going to trial; conviction vacated |
| Jurisdiction: whether coram nobis was proper and appellate COA required | Swaby: Habeas was available because he was "in custody" on supervised release/detainer; timely appeal treated as COA request | Gov: First petition should have been coram nobis; COA lacking | Held: Habeas was available (in custody), COA issued because reasonable jurists could debate district court’s ruling; appellate jurisdiction proper |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (counsel must advise clearly about deportation consequences when readily ascertainable)
- Strickland v. Washington, 466 U.S. 668 (two‑prong ineffective assistance test: performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (prejudice in guilty plea context assessed by effect on plea decision)
- United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012) (general warnings about deportation do not cure specific misadvice)
- Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) (prejudice shown where defendant focused on avoiding immigration consequences and prosecution likely would accept alternative plea)
- United States v. Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015) (adopts Kovacs standard for showing reasonable probability of better plea)
- Slack v. McDaniel, 529 U.S. 473 (standard for certificate of appealability)
- Carafas v. LaVallee, 391 U.S. 234 (collateral consequences can keep habeas claims live despite release)