United States of America v. John William Fry

United States Court of Appeals for the Ninth Circuit

John William Fry, a Canadian citizen, sought habeas relief under 28 U.S.C. § 2255, arguing that his counsel had ineffectively assisted him by not informing him that he could be deported if convicted, and by not objecting to the district court’s use of a preponderance of the evidence standard instead of the clear and convincing standard at sentencing.  The court held that Fry’s counsel’s failure to advise him of collateral immigration consequences of the criminal process did not amount to ineffective assistance of counsel.

In 1997, Fry was convicted by a jury of conspiracy to commit wire fraud, of wire fraud and of aiding and abetting. At sentencing, the district court found by a preponderance of the evidence that $4 million of loss was attributable to Frey. The court sentenced him to 46 months in prison. In 2000, Immigration and Naturalization Services began deportation proceedings against Fry based on the conviction for an aggravated felony. He petitioned the court on the grounds that his counsel ineffectively represented him, thus violating his Sixth Amendment right to effective assistance of counsel.

On review, the court stated that to establish ineffective assistance of counsel, Fry must show (1) that counsel performance was deficient (fell below an objective standard of reasonableness), and (2) that the deficient performance prejudiced his defense.  Strickland v. Washington , 466 U.S. 668, 687 (1984). The court found that deportation is a collateral, not direct, consequence of the criminal process,  Fruchtman v. Kenton, 531 F.2d 946, 949 (9^th Cir.1976);  United States v. Amador-Leal, 276 F.3d 511, 513-17 (9^th Cir. 2002), and counsel failure to advise a defendant of a collateral penalty is not objectively unreasonable.  Torrey v. Estelle, 842 F.2d 234, 237 (9^th Cir. 1988).

The court further found that Fry demonstrated no prejudice from his counsels’ failure to object to the standard of proof used at sentencing.  Normally, the government must prove sentence-enhancing factors by only a preponderance of the evidence.  United States v. Romero-Rendon, 220 F.3d 1159, 1160 (9^th Cir. 2000). To prevent an extremely disproportionate effect in sentencing, the government may have to satisfy a clear and convincing standard. United States V. Hopper, 177 F.3d 824, 833 (9^th Cir. 1999). The court held that Fry did not affirmatively prove prejudice, Strickland, 466 U.S. at 693, because he did not demonstrate how the weight of evidence precluded the government from meeting the clear and convincing standard.  Further, the court affirmed the district court’s conclusion in the habeas hearing that the evidence against Fry did meet the clear and convincing standard anyway.