Judge Thomas Platt

Quintieri, who pleaded guilty to a felony in 1996, pleaded guilty in 2000 to possessing a counterfeit check. After attorney Weiss sought sentencing at the bottom of the guidelines range, Quintieri was sentenced to one year and one day in prison. While in prison Quintieri learned he would be automatically deported for having committed an aggravated felony. The immigration agency deemed Quintieri deportable as an aggravated felon. After 10½ months in prison, he was deported. District court denied Quintieri audita querela relief, rejecting his claim that Weiss was ineffective because he failed to argue for a downward departure to a 364-day sentence. Quintieri argued that under United States v. Restrepo, downward departure is permissible when there are immigration consequences. The court concluded that Quintieri could have, but did not, raise the sentencing issue in a habeas corpus petition. The Second Circuit has not weighed in on Quintieri’s claim that Padilla v. Kentucky created a retroactive rule requiring attorneys to advise their clients that a guilty plea could subject them to deportation. Courts within the district that have considered Padilla have concluded that it is not retroactive.