SHEPHERD, Circuit Judge.
Ansu Abraham pled guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The district court
On September 15, 2009, Abraham pled guilty to possession with intent to distribute cocaine. In preparation for sentencing, a probation officer prepared a Presentence Investigation Report ("PSR") and a Sentencing Recommendation. The PSR included the following language:
Abraham's Sentencing Recommendation included substantially similar language.
The district court held a sentencing hearing on November 30, 2009. At that hearing, with Abraham present and in open court, Abraham's attorney confirmed he received the PSR and Sentencing Report and discussed them with Abraham. The district court accepted the PSR, adopted its findings, and sentenced Abraham to twelve months and one day imprisonment, as well as three years supervised release.
On March 31, 2010, four months after the district court sentenced Abraham, the Supreme Court held in Padilla v. Kentucky,
The district court denied Abraham's motion. United States v. Abraham, 2011 WL 3882290, at *3 (D.Neb. Sept. 1, 2011) (unpublished). The court first expressed doubt that Padilla applied retroactively on collateral review but then went on to "assume that Padilla is retroactive and Abraham's motion was timely filed...." Id. at *2. The court held that even if Padilla were retroactive, Abraham was not entitled to relief under Strickland because (1) at the time Abraham pled guilty, "it was not clear that it was a prevailing professional norm in the Eighth Circuit to inform a defendant of immigration consequences when pleading guilty" and (2) Abraham could not show prejudice because a related state charge was dismissed in light of the federal prosecution but "could likely be reinstated" and result in deportation if the federal conviction were vacated. Id. at *3 (internal quotation marks omitted).
We review de novo a district court's denial of a motion to vacate under 28 U.S.C. § 2255. Hodge v. United States, 602 F.3d 935, 937 (8th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 334, 178 L.Ed.2d 217 (2010).
The Supreme Court held in Padilla that failure to advise a defendant of the immigration consequences of pleading guilty is subject to Strickland's two-pronged analysis. 130 S.Ct. at 1482. Under the first Strickland prong, a court must "determine whether counsel's representation fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Id. (internal quotation marks omitted). "When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear ... the duty to give correct advice is equally clear." Id. at 1483 (internal footnote omitted). Under the second Strickland prong, the court must determine whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 1482.
The circuits are split over whether Padilla is a new rule of constitutional law or a new application of an old rule. This distinction is important because old rules apply retroactively on collateral review, while new rules, subject to narrow exceptions, do not. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Three circuits have held Padilla announced a new rule that does not apply retroactively. See United States v. Amer, 681 F.3d 211, 214 (5th Cir.2012); United States v. Chang Hong, 671 F.3d 1147, 1148 (10th Cir.2011); Chaidez v. United States, 655 F.3d 684, 686 (7th Cir. 2011), cert. granted, ___ U.S. ___, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012). Two circuits have assumed, without deciding, that Padilla announced a new rule and
We need not decide whether Padilla applies retroactively on collateral review because we hold that even if Padilla does apply retroactively, Abraham cannot satisfy Strickland's prejudice prong. Regardless of whether Padilla is retroactive, a defendant cannot satisfy Strickland's prejudice prong when "the PSR indicated a likelihood that [the defendant] would be deported if convicted; [the defendant] confirmed that he had read the PSR, discussed it with his counsel, and understood it; and [the defendant] never moved to withdraw his guilty plea." See Correa-Gutierrez v. United States, 455 Fed.Appx. 722, 723 (8th Cir.2012) (unpublished per curiam).
Abraham does not dispute that he read the PSR, but rather argues that his attorney was ineffective for failing to advise him that the offense "virtually ensured" deportation. However, Abraham's revised PSR clearly indicated his offense rendered him deportable. Abraham accepted this PSR without objection, and his attorney confirmed at sentencing, with Abraham present and in open court, that he received the PSR and discussed it with Abraham. Abraham never moved to withdraw his guilty plea. Thus, there is no "reasonable probability that ... the result of the proceeding would have been different" had Abraham's attorney advised him of the immigration consequences of pleading guilty. See Padilla, 130 S.Ct. at 1482. Because Abraham cannot satisfy Strickland's prejudice prong, he is not entitled to relief.
For the reasons above, we affirm the district court's denial of Abraham's motion for reconsideration.