     Case: 17-10988      Document: 00515207182         Page: 1    Date Filed: 11/20/2019




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


                                      No. 17-10988                              FILED
                                                                        November 20, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

DONALD RAYMOND SCRIBNER, II,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-1147


Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
PER CURIAM: *
       Federal prisoner Donald Scribner sought postconviction relief on the
ground that his counsel was ineffective for giving incorrect advice about his
sentence, which allegedly caused him to go to trial. After the district court
denied his petition, we remanded because the district court had overridden
credibility findings of the magistrate judge without hearing from the
witnesses. United States v. Scribner, 832 F.3d 252, 260 (5th Cir. 2016). On
remand, the district court held a hearing, after which it concluded that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-10988     Document: 00515207182      Page: 2   Date Filed: 11/20/2019


                                  No. 17-10988

Scribner had failed to prove that he was prejudiced by counsel’s misadvice.
That determination was not clearly erroneous, so we AFFIRM.
                                        I.
      Police officers executed a search warrant on a home that was used as a
marijuana grow house. They seized 560 marijuana plants. During the search,
officers found a utility bill for another house. Two days later, officers conducted
a knock-and-talk at the address listed on the utility bill. Scribner was in that
home and he was arrested along with two others. The officers also recovered
79 marijuana plants, grow lights, and other equipment used to grow
marijuana.
      Scribner was interviewed twice following his arrest.           During both
interviews, he insisted he was hired to perform a “cleanup job,” not to sell
marijuana.
      A grand jury charged Scribner with (1) conspiracy to manufacture and
possess with intent to distribute marijuana and (2) aiding and abetting
possession with intent to distribute marijuana. The government offered him a
plea deal that would have allowed him to plead guilty to only the aiding and
abetting count. Scribner rejected the plea and proceeded to trial. The jury
found him not guilty of conspiracy, but guilty of aiding and abetting. The
Presentence Report applied the career offender enhancement, which resulted
in a recommended Guidelines range of 210 to 240 months. The district court
adopted that range and sentenced Scribner to 210 months in prison.
      Scribner did not know before trial that he was facing such a lengthy
sentence. That is because his lawyer did not realize that he qualified as a
career offender under the Guidelines.         Without that classification, she
estimated that a guilty plea would have resulted in a Guidelines range of 30 to
37 months. Under her calculation, a conviction after trial would have meant a



                                        2
    Case: 17-10988     Document: 00515207182      Page: 3   Date Filed: 11/20/2019


                                  No. 17-10988

slightly higher range of 37 to 46 months.
      After losing a direct appeal that challenged the sufficiency of the
evidence to support his conviction, United States v. Scribner, 469 F. App’x 384,
385–86 (5th Cir. 2012), Scribner sought postconviction relief under 28 U.S.C.
§ 2255. His motion asserted two grounds of ineffective assistance of counsel:
his counsel’s failure to object to the career offender enhancement and his
counsel’s failure to predict he was subject to the enhancement. A magistrate
judge held an evidentiary hearing and recommended the district court grant
Scribner relief on the failure-to-predict ground. The district court, however,
rejected part of the recommendation and denied relief. On appeal, this court
held that the district court implicitly overruled some of the magistrate judge’s
credibility determinations, which it cannot do unless it first holds its own
evidentiary hearing. Scribner, 832 F.3d at 260. Our court remanded the case
for the district court to either accept the magistrate judge’s credibility findings
or hold its own evidentiary hearing. Id.
      On remand, the district court held its own hearing. Scribner and his
trial attorney testified.
      Following the hearing, the district court rejected Scribner’s motion. It
noted that Scribner “maintained that he was innocent throughout trial and . . .
even after his conviction.” The court also cited his lawyer’s view that Scribner
was “resolute” in taking the case to trial. The court thus concluded Scribner
did not, at the relevant time, believe he was guilty of the marijuana offenses.
As a result, Scribner did not prove there was a reasonable probability he would
have pled guilty had his counsel correctly informed him about his sentencing
exposure. The court also concluded that even if Scribner would have been
willing to plead guilty, Scribner would not have accepted the plea offered.
Instead, he would have tried to get a “better” agreement. Additionally, the



                                        3
    Case: 17-10988    Document: 00515207182     Page: 4   Date Filed: 11/20/2019


                                 No. 17-10988

court ruled that no evidence indicated Scribner would have been willing to
admit intent to distribute, so the court would not have accepted his plea even
if he made one. And likewise, the court held that Scribner would not have
received the acceptance of responsibility credit (meaning he would not have
received a lower sentence), because he would not have admitted guilt.
      A member of this court granted a certificate of appealability, authorizing
this second appeal of the postconviction proceeding.
                                      II.
      To establish a claim of ineffective assistance of counsel, Scribner must
show (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984).   The government has conceded throughout the postconviction
litigation that Scribner’s counsel was constitutionally ineffective in giving
incorrect advice about his sentencing exposure. The focus has thus been on
prejudice. Under Strickland’s prejudice requirement, Scribner “must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. When a defendant contends that counsel’s deficient performance
caused him to reject a plea offer, the prejudice inquiry requires the defendant
to show: (1) that but for counsel’s ineffective advice, there is a reasonable
probability that the defendant would have accepted the plea; (2) that the court
would have accepted its terms; and (3) that under the plea, the sentence would
have been less severe than the one imposed. Lafler v. Cooper, 566 U.S. 156,
164 (2012).
      The district court concluded that Scribner did not establish any of the
three Lafler requirements. But the same reasoning—that Scribner would not



                                       4
     Case: 17-10988       Document: 00515207182         Page: 5     Date Filed: 11/20/2019


                                       No. 17-10988

have accepted a plea because he insisted on his innocence and wanted a trial—
supported all three of its determinations. Scribner correctly observes that the
district court’s holding thus turns entirely on its answer to the first question:
whether Scribner would have accepted the plea. 1 Id. at 164.
       As a factual determination supporting the denial of a section 2255
petition, we review only for clear error the district court’s finding on “[w]hether
it is reasonably probable that [the] decision to plead guilty would have been
different had he been properly counseled as to his potential punishment.”
United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004). That deferential
standard requires us to uphold the district court’s finding as long as it “is
plausible in light of the record as a whole.” United States v. Serfass, 684 F.3d
548, 550 (5th Cir. 2012).
       Scribner contends the finding of no prejudice was not plausible because
of how much greater the benefit of pleading was under his actual sentencing
exposure compared to the benefit under his counsel’s mistaken advice. See Lee
v. United States, 137 S. Ct. 1958, 1966 (2017) (recognizing that the “decision
whether to plead guilty” involves, in part, “assessing the respective
consequences of a conviction after trial and by plea”).                 The difference is
substantial. Given what his counsel told him, Scribner thought a conviction at
trial would result in a Guidelines range that, at the bottom end, was only seven



       1 For example, the district court concluded that Scribner did not establish the second
requirement—whether the court would have accepted the terms of the plea agreement—
because Scribner would not have been willing to accept responsibility at a plea hearing. But
that just repeats the first requirement. The second inquiry is a distinct one that focuses not
on the defendant’s willingness to enter into a plea agreement (which includes his willingness
to admit guilt) but on whether the court “would have accepted its terms.” Lafler, 566 U.S. at
164 (emphasis added); see also, e.g., Arnold v. Thaler, 484 F. App’x 978, 982–83 (5th Cir.
2012) (remanding for habeas court to determine if trial court would have accepted the “15-
year plea offer” that the defendant contended he would have agreed to absent counsel’s bad
advice). As the magistrate judge pointed out, both of Scribner’s codefendants pled guilty
under the same agreement as the one offered Scribner, and the court accepted those pleas.


                                              5
    Case: 17-10988    Document: 00515207182       Page: 6   Date Filed: 11/20/2019


                                   No. 17-10988

months greater than the range that would result from a plea. If counsel had
given Scribner accurate advice, he would have known that a conviction at trial
would have resulted in the lower end of the Guidelines range being 59 months
higher than under a plea. So counsel’s misadvice meant Scribner did not
realize how much lower his sentence would likely be with a guilty plea as
opposed to a trial conviction.
      But that is just one way of looking at the plea calculus.           When a
defendant is considering a plea agreement, the comparison is not just between
guilt at trial and guilt via a plea. The third option is that a jury will acquit.
That, of course, is the whole point of going to trial. And had Scribner known
his actual sentencing exposure, the benefit of an acquittal would have been
much greater. Under counsel’s mistaken advice, counsel thought an acquittal
would save him from about three-to-four years in prison. Under his actual
exposure, an acquittal would have saved him eighteen-to-twenty years in
prison. So while a plea would have produced a greater benefit vis-à-vis a trial
conviction under Scribner’s actual sentencing exposure, the much higher
overall exposure also meant there would have been a much greater benefit
from an acquittal.      Indeed, Scribner’s trial counsel recognized in the
postremand hearing that substantial sentencing exposure may make a
defendant who believes in his innocence more likely to go to trial.            She
explained that while an innocence-professing defendant may enter into a plea
for strategic reasons when sentencing exposure is low, “looking at a massive
amount of time” may be a “motivating factor to take the case to trial because,
of course, why on earth would you plead guilty and get a huge sentence when
you feel that you are innocent.”
      Scribner believed he was innocent during the pendency of his case in the
trial court. His repeated protestations of innocence to his counsel were the



                                        6
    Case: 17-10988     Document: 00515207182      Page: 7   Date Filed: 11/20/2019


                                  No. 17-10988

main basis for the district court’s finding that he would not have pled even if
counsel had accurately advised him about his sentencing exposure. The record
supports the finding that Scribner was “resolute in taking his case to trial”
during his discussions with trial counsel.
      Without disputing that he repeatedly maintained his innocence during
discussions with trial counsel, Scribner contends it was improper to give much
weight to those statements. He cites a Sixth Circuit opinion stating that a
defendant’s “repeated declarations of innocence do not prove, as the
government claims, that he would not have accepted a guilty plea.” Griffin v.
United States, 330 F.3d 733, 738 (6th Cir. 2003). But there are two key
differences between Griffin and this case, one procedural and the other
substantive. Griffin did not decide the ultimate issue whether the petitioner
was entitled to postconviction relief; the Sixth Circuit held only that the
district court should have held a hearing. Id. at 739–40. As a result, Griffin’s
statement that “repeated declarations of innocence” did not disprove the
petitioner’s claim must be read in the context of the statute requiring a hearing
in section 2255 cases “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
In contrast to the procedural posture of Griffin, Scribner received a hearing on
this claim, which allowed the district court to assess credibility, weigh the
evidence, and make findings.
      The second difference is that the Griffin “declarations of innocence” were
in-court statements, so the Sixth Circuit rejected heavy reliance on them in
assessing the would-he-have-pled prejudice inquiry because “[d]efendants
must claim innocence right up to the point of accepting a guilty plea, or they
would lose their ability to make any deal with the government.” Griffin, 330
F.3d at 738. Griffin also noted that giving significant weight to in-court claims



                                        7
    Case: 17-10988    Document: 00515207182    Page: 8   Date Filed: 11/20/2019


                                No. 17-10988

of innocence was at odds with a defendant’s Fifth Amendment rights. Id.
Those same concerns are not present in Scribner’s case. The district court did
not rely exclusively on Scribner’s in-court professions of innocence; Scribner
repeatedly told his counsel in then-privileged statements that he was innocent
and thus wanted a trial.
      Finally, Supreme Court precedent more recent than Griffin supports the
district court’s reliance on Scribner’s mindset before he was found guilty at
trial. Lee v. United States addressed a Strickland claim that is the inverse of
this one: the defendant who pled guilty contended he would have gone to trial
but for counsel’s ineffectiveness. 137 S. Ct. at 1962. In addressing how to
answer the prejudice inquiry in that scenario, which poses a counterfactual
inquiry also focused on a defendant’s plea-or-trial decision, Lee offered the
following guidance: “Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded but for his
attorney’s deficiencies.   Judges should instead look to contemporaneous
evidence to substantiate a defendant’s express preferences.” Id. at 1967. The
contemporaneous evidence of Scribner’s intentions when he was deciding
whether to take the plea offer supports the district court’s finding. Scribner
maintained his innocence and thought he could “beat” the charges. His counsel
agreed that he had a “triable” case given that his involvement was limited to
the post-distribution stage of dismantling the grow house. The belief that the
case was triable proved to be a reasonable one; the jury acquitted Scribner on
one of the two charges.
      For these reasons, the district court’s finding that Scribner would have
wanted a trial even if he had accurate sentencing information was not clearly
erroneous. The judgment is AFFIRMED.




                                      8
