     Case: 18-30517      Document: 00515346573         Page: 1    Date Filed: 03/16/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 18-30517                              FILED
                                                                          March 16, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

RANDY L. RANDALL,

              Defendant - Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:15-CV-2307


Before KING, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       This appeal from the denial of a 28 U.S.C. § 2255 motion raises a single
issue: whether the district court erred when it denied, without holding an
evidentiary hearing, Randy Randall’s claim that one of his attorneys,
G. Warren Thornell, was ineffective in advising him to plead guilty to an
offense involving five kilograms or more of cocaine. Having carefully reviewed
the briefing and the record before us, we conclude that the district court did
not err and thus AFFIRM.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 18-30517
                                   BACKGROUND
       In 2012, Randall pled guilty to, inter alia, conspiracy to possess with
intent to distribute five kilograms or more of cocaine. A written factual basis
for the plea stated that a codefendant had used an apartment listed in
Randall’s name to stash cocaine. It further stated that when this apartment
was searched, 148.8 grams of powder cocaine and 35.2 grams of crack cocaine
were found in the closet of the bedroom where Randall was sleeping. The
factual basis went on to specify that the “overall scope of th[e] drug conspiracy
involved 5 kilograms and more of a mixture and substance containing a
detectable amount of cocaine.” Randall acknowledged that he had read and
signed the written factual basis.
       For the drug conspiracy count, a probation officer initially calculated a
guidelines range of 70 to 87 months imprisonment based on the 148.8 grams
of powder cocaine and 35.2 grams of crack cocaine Randall was responsible for
and had knowledge of. But because a conspiracy conviction involving five
kilograms or more of cocaine required a statutory minimum sentence of 10
years, see 21 U.S.C. § 841(b)(1)(A) (2012), 1 the probation officer recommended
a sentence of 120 months imprisonment.
       Randall filed a pro se motion to withdraw his guilty plea, asserting that
his trial attorney had frightened him into accepting the plea by informing him
that, in light of his past drug felonies, he “face[d] mandatory life in prison”
should he proceed to trial. See 21 U.S.C. § 841(b)(1)(A) (“If any person commits
a violation of this subparagraph . . . after two or more prior convictions for a


       1 We cite the 2012 version of this statute, while noting that this section was amended
in 2018, because the incidents giving rise to Randall’s conviction occurred in late-2011.

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                                      No. 18-30517
felony drug offense have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release . . . .”). The district court
denied Randall’s motion. It reasoned that Thornell had correctly advised
Randall that he would be subject to a statutory minimum of life imprisonment
if he was convicted at trial. The court then adopted the probation officer’s
factual findings and sentenced Randall to 120 months imprisonment on the
drug conspiracy count.
       Randall’s sentence was affirmed on appeal. United States v. Randall,
595 F. App’x 454 (5th Cir. 2015). He then filed the instant Section 2255 motion.
In relevant part, Randall claimed that Thornell, now deceased, was ineffective
for advising him to plead guilty to an offense involving five kilograms or more
of cocaine. After the district court denied Randall’s motion, 2 this court granted
a COA to resolve Randall’s ineffective assistance claim, including whether the
district court erred when it refused to hold an evidentiary hearing.
                             STANDARD OF REVIEW
       On appeal from a denial of a Section 2255 motion, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We review the
district court’s denial of an evidentiary hearing for an abuse of discretion.
United States v. Allen, 918 F.3d 457, 460 (5th Cir. 2019).




       2 The district court rejected Randall’s motion because Randall, in his guilty plea,
“unequivocally admitted . . . that he did ‘knowingly and intentionally conspire and agree
together [with other persons] to possess with intent to distribute 5 kilograms or more of a
mixture and substance containing a detect[a]ble amount of cocaine[.]’” Randall’s guilty plea,
however, is irrelevant for purposes of assessing whether Thornell should have advised
Randall to accept the guilty plea in the first place.
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                                 No. 18-30517
                                DISCUSSION
      Randall’s ineffective assistance of counsel claim is reviewed under the
familiar Strickland framework. Randall must demonstrate (1) that “counsel’s
performance was deficient” and (2) “that the deficient performance prejudiced
[his] defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). To demonstrate deficient performance, Randall must show that
“counsel’s representation fell below an objective standard of reasonableness”
under “prevailing professional norms.”      Id. at 688.    And to demonstrate
prejudice, he “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
      Randall asserts that Thornell erroneously informed him that if he
proceeded to trial, he would be subjected to a mandatory minimum sentence of
life imprisonment. He contends that Thornell should have known that he was
responsible only for the quantity of drugs personally attributable to him. The
government responds that Thornell’s performance was not deficient because,
at the time of Randall’s plea, this court’s precedents conflicted as to whether a
defendant in a drug conspiracy case could be sentenced based on the full drug
amount involved in the conspiracy or only the amount attributable to the
individual defendant.
      We agree with the government that Thornell was not constitutionally
deficient. This court has long held that statutory maximums are determined
by the drug quantity attributable to the overall conspiracy. See United States
v. Turner, 319 F.3d 716, 722–23 (5th Cir. 2003). At the time of Randall’s case,
it was reasonable for Thornell to believe that the same would be true for the

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                                    No. 18-30517
statutory minimum at issue here. After all, nothing in the relevant statute
requires an individualized drug quantity determination. Rather, a violation
“involving 5 kilograms or more of a mixture or substance containing a
detectable amount of . . . cocaine” triggers the ten-year minimum sentence.
21 U.S.C. § 841(b)(1)(A)(ii).       Thornell’s advice was thus based on a
straightforward reading of the statute.
       Furthermore, at the time of Randall’s plea, this circuit’s pattern jury
instructions treated drug quantity as an element of the offense and required a
conspiracy-wide finding. See Fifth Circuit Pattern Jury Instruction § 2.89
(2012). This explains why the factual basis supporting Randall’s plea stated
“that the overall scope of th[e] drug conspiracy involved 5 kilograms and more
of a mixture and substance containing a detectable amount of cocaine.” It
makes little sense for the factual basis to include the quantity of drugs
attributable to the conspiracy if that quantity is not an element of the offense
(and one that triggers the ten-year minimum sentence).                Tellingly, the
prosecutor who drafted the factual basis, defense attorney Thornell, and the
trial judge who accepted the plea all presumably believed that the drug
quantity attributable to the overall conspiracy established the statutory
sentencing range. And the probation officer acted under the same impression.
       We “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,
104 S. Ct. at 2065. That this court decided three years later to limit sentences
to the drug quantity attributable to each defendant rather than the minimum
indicted amount, see United States v. Haines, 803 F.3d 713, 742 (5th Cir. 2015),
did    not   render    Thornell’s   advice   below     professional   standards    or

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                                 No. 18-30517
constitutionally deficient when he represented Randall.       Counsel are not
required to foresee future developments in the law. United States v. Fields,
565 F.3d 290, 294 (5th Cir. 2009). For the foregoing reasons, Randall has failed
to overcome the presumption of attorney effectiveness.
      Relatedly, because Randall “cannot establish one . . . of the elements
necessary” to his ineffective assistance of counsel claim, “an evidentiary
hearing [was] not necessary.” United States v. Walker, 68 F.3d 931, 934 (5th
Cir. 1995); see also Hill, 474 U.S. at 60, 106 S. Ct. at 371. We thus conclude
that the district court did not err when it declined to hold an evidentiary
hearing.
                               CONCLUSION
      The district court’s judgment is AFFIRMED.




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