UNITED STATES of America, Plaintiff-Appellee, v. Jose GUEVARA-DIAZ, Defendant-Appellant, 126 F. App'x 429

MEMORANDUM We conclude that Guevara-Diaz was prejudiced as a result of the ineffective assistance provided by his counsel when counsel failed to fully communicate that the Government’s plea offer would be withdrawn if counsel filed or argued any pretrial motions with the court. See Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring the defendant to show that he was prejudiced by counsel’s deficient performance).

Guevara-Diaz did not lose the government’s offer because he waited to investigate the derivative citizenship claim because the plea offer had no expiration date. Rather, he lost the offer because his counsel violated the offer by filing a motion to dismiss. The district court erred in finding otherwise. We therefore reverse and remand, with the instruction that the government reinstate the original 30-month plea offer. See United States v.

Blaylock, 20 F.3d 1458, 1468-69 (9th Cir. 1994) (“[Wlhere, as here, the defendant was deprived of the opportunity to accept the plea offer, putting him in the position he was in prior to the Sixth Amendment violation ordinarily will involve reinstating the original offer.”). Because we find that Guevara-Diaz was prejudiced by his counsel’s deficient performance, we need not address his argument that the district court plainly erred by enhancing his sentence sixteen levels under U.S.S.G. § 2L1.2.

REVERSED and REMANDED. phig disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.