     Case: 13-50348       Document: 00512933528         Page: 1     Date Filed: 02/11/2015




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

                                                                                     FILED
                                                                                February 11, 2015
                                       No. 13-50348
                                                                                  Lyle W. Cayce
                                                                                       Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

ISRAEL BRITO,

                                                  Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:10-CV-12


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       Israel Brito (“Israel”) 1 appeals the district court’s denial of his petition
under 28 U.S.C. § 2255 seeking relief from his sentence upon a guilty plea to
conspiracy to import cocaine. He claimed ineffective assistance of counsel in
the matters leading up to and including the sentencing hearing. The district




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1  Because several people with the last name “Brito” play a role in this case, we refer
to these individuals by their first name.
    Case: 13-50348        Document: 00512933528   Page: 2   Date Filed: 02/11/2015



                                   No. 13-50348
court denied relief and denied a certificate of appealability (“COA”). Israel
appealed.
      We granted a COA on the questions of “whether the district court erred
by denying [Israel’s] claims that trial counsel was ineffective for advising him
not to make a statement regarding the offense of conviction during the
presentence interview and not advising him what to say during allocution.”
We then received briefing on the merits and oral arguments. We AFFIRM.
                     I.     Facts and the Sentencing Hearing
      Beginning in 2003, Israel, his wife Laura Brito (“Laura”), and his nephew
Cesar Brito (“Cesar”) conspired to import cocaine from Mexico to the United
States. One of their couriers, Maria Flores, was caught at the port of entry in
Del Rio, Texas, on September 28, 2003; she confessed to several prior trips and
explained that Cesar had recruited her but Israel also assisted her by, among
other things, providing her with a car and instructing her on travel routes.
Israel, Laura, and Cesar were named in a four-count superseding indictment
charging them with various cocaine-related crimes. In 2008, Israel pleaded
guilty to the second count, conspiracy to import cocaine, in exchange for the
government’s agreement to do the following: dismiss the other charges; move
for a third-level reduction for acceptance of responsibility under the U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 3E1.1 if he was entitled to a two-
level reduction; and recommend a sentence at the bottom of the advisory
guidelines. In addition to pleading guilty, Israel also waived his right to appeal
his guilty plea and any sentence imposed within the advisory guidelines,
except on the grounds of prosecutorial misconduct and ineffective assistance of
counsel.
      Furthermore, as part of the plea agreement, Israel stipulated to a factual
basis that contained several admissions but did not include Flores’s seven
previous trips or two trips by another driver Cesar recruited, Adriana
                                         2
     Case: 13-50348         Document: 00512933528           Page: 3     Date Filed: 02/11/2015



                                         No. 13-50348
Cardenas. In fact, he did not name Cardenas or acknowledge her existence or
role in the conspiracy.
       On May 8, 2008, Israel attended a presentence interview with a
probation officer. His attorney did not attend this interview but advised him
not to discuss his conduct. As a result, the probation officer did not recommend
that Israel be given an acceptance-of-responsibility reduction in offense level
under § 3E1.1, as he had not yet “truthfully admitt[ed] the conduct comprising
the offense(s) of conviction.” See U.S.S.G. § 3E1.1 cmt. n.1(a) (2007). To obtain
this reduction, Israel had a second presentence interview on July 10, which his
attorney did attend, though he issued the same instructions to Israel. Without
any admission of the offense conduct to probation, the presentence report did
not recommend an adjustment for acceptance of responsibility.
       According to the report, Israel’s total offense level under the sentencing
guidelines was 42, computed from a base offense level of 38 and a four-level
increase for being “an organizer or leader of a criminal activity that involved
five or more participants.” Israel was held responsible for 169.27 kg of cocaine,
the sum of the known quantities seized from Flores (24.27 kg) and Cardenas
(20 kg), and the estimated quantities previously transported by Flores
(105 kg) 2 and Cardenas (20 kg). This drug quantity determined the base
offense level of 38. As Israel had no criminal history, the guideline range for
his total offense level of 42 was imprisonment for 360 months to life.
       Israel timely filed objections to the presentence report, challenging the
drug quantity, denial of the acceptance-of-responsibility reduction, and his
characterization as an organizer or leader. Most relevantly, Israel denied any
involvement with Cardenas. Thus, he requested that the 40 kg attributed to


       2Flores stated that each of her prior 7 trips involved 20 kg of cocaine, while other,
unnamed “cooperating witnesses” estimated her loads at 10 kg each. The presentence report
averaged these figures to arrive at 15 kg for each of the 7 trips, for a total of 105 kg of cocaine.
                                                 3
     Case: 13-50348       Document: 00512933528          Page: 4     Date Filed: 02/11/2015



                                       No. 13-50348
her be excluded from his drug quantity and urged that the four-level leadership
increase be dropped, as without Cardenas the conspiracy involved fewer than
the statutory requirement of five participants.
       At Israel’s sentencing hearing in 2009, the district court overruled most
of Israel’s objections to the presentence report.                  Israel’s counsel had a
discussion with the district court about whether Israel’s failure to debrief with
the probation officer precluded the acceptance of responsibility. The court took
the position that admitting to relevant facts in the factual basis was not
enough, there must be a full accounting to the probation officer.
       After ruling on Israel’s objections, the district court proceeded with
sentencing. The court formally accepted Israel’s guilty plea and then gave him
the opportunity to speak on his own behalf. 3 During allocution, Israel stated
that he had made a mistake and that he regretted it. However, he went on to
state that he moved to Mexico in October 2003 and had nothing to do with
Cesar or Cardenas. In addition, he stated that he came back to the United
States to purchase supplies for his jewelry business and that his family was
involved in “lots of different things” but that he was “never there in the
picture.” Israel protested that Cesar was the boss in the smuggling operation.
Following these statements, his counsel offered a number of reasons why the
district court should consider a downward departure. Allocution concluded
with a final statement from Israel about his family.
       The district court then stated that it was “contemplating a sentence
outside of the guideline range, but [] was waiting to hear something from Mr.
Brito.” The district court expressed concern about Israel’s continued denial of
the Cardenas-related conduct and blaming of his nephew, Cesar. The district


       3 The court stated: “At this time, Mr. Brito, you have the opportunity to say whatever
you’d like. And at this point this is allocution. So you can tell me about yourself, your family
whatever you’d like to say.”
                                               4
    Case: 13-50348     Document: 00512933528      Page: 5   Date Filed: 02/11/2015



                                  No. 13-50348
court concluded: “The Court doesn’t have any reason to sentence outside of the
advisory guideline range. I can’t come up with anything when the defendant
doesn’t give me anything even here during allocution. So the Court finds that
the advisory guidelines are adequate . . . .” Israel was sentenced to 360 months
of imprisonment and 5 years of supervised release.
                          II.   The § 2255 Proceeding
      Pursuant to his plea agreement, Israel did not appeal. Instead, through
new counsel, he brought this action alleging that his trial counsel was
ineffective for (1) advising him not to make a statement regarding the offense
of conviction during the presentence interviews, and (2) not advising him on
allocution. Israel also filed an affidavit in which he stated that his counsel told
him not to talk to the probation officer about his illegal conduct.         Israel
explained that he did not understand why he had two presentence interviews
nor was he told that following the advice of counsel during these interviews
would preclude him from obtaining a reduction for acceptance of responsibility.
Regarding allocution, Israel stated that: (1) his counsel did not give him “advice
about addressing the district court at sentencing”; (2) he “did not understand
that there was no reason to bring up the small differences [he] had with the
government about the case[] and that doing so would hurt [him]”; and (3) he
would have “told the judge the facts like what [he] had confessed and admitted
in the factual basis” had he understood the purpose of allocution.
      To address these claims, the district court employed the familiar two-
part test first articulated in Strickland v. Washington, 466 U.S. 668 (1984). To
prevail under this test, the defendant must demonstrate that “(1) counsel’s
performance fell below an objective standard of reasonableness and that (2)
but for counsel’s deficient performance, the result of the proceeding would have
been different.” United States v. Bishop, 629 F.3d 462, 469 (5th Cir. 2010)
(citing Strickland, 466 U.S. at 687–96).
                                        5
    Case: 13-50348     Document: 00512933528      Page: 6    Date Filed: 02/11/2015



                                  No. 13-50348
      The same judge who sentenced him considered the evidence presented
in the § 2255 proceeding and concluded that Israel “oversimplified” what
happened in contending that he would have “repeated” his factual basis if his
counsel had given better advice. United States v. Brito, No. 2:07-CR-132-AM,
order at 8 (W.D. Tex. Mar. 28, 2013), ECF No. 165. The court’s opinion notes
that trial counsel’s strategy of attempting to limit relevant conduct and drug
quantities to those admitted by Israel was a “sound strategy.” Id. at 9. “By
instructing [Israel] not to discuss the offense conduct with Probation, counsel
prevented him from admitting to additional drug quantities not contained in
the factual basis . . . .” Id. (emphasis added). The district court held that Israel
“cannot in good faith argue that he could have only admitted to his involvement
with 28.49 kilograms of cocaine, denied his involvement with the rest of the
cocaine, and still been awarded acceptance.” Id. at 10. The court concluded
that, with respect to the ineffectiveness claim centered on the attorney’s advice
about the presentence interview, the advice was “strategic” and well within the
range found not to be ineffective. Id.
      With respect to the claim regarding ineffectiveness of advice about
allocution, the district court found that it was not necessary for counsel to give
any sort of specific instructions to Israel about allocution because allocution is
a time for the defendant to speak for himself. Id. at 11. Even assuming such
advice was necessary, the district court again concluded that the choice to
downplay Israel’s role in the offense was a reasonable strategic choice, even
though it did not prove to be a winning one: “Both Brito and counsel tried to
downplay Brito’s role in the conspiracy, not doubt in hopes of prevailing with
the argument that his sentence should be less than the 360 months
recommended by the PSR.            Had Brito accepted responsibility during
sentencing, this argument would have been unavailing.” Id. at 12.


                                         6
    Case: 13-50348    Document: 00512933528      Page: 7   Date Filed: 02/11/2015



                                 No. 13-50348
      The district court then addressed prejudice and concluded that, even
now, Israel denies “full involvement.” Id. The district court noted: “[Israel]
did not disagree with minor facts; instead, he continued to deny major parts of
the conspiracy. Most importantly, there is absolutely no indication in his §
2255 motion that he has now fully accepted responsibility.” Id. (emphasis
added).   He still refused to admit the Cardenas angle and his “post-2003
connection with Cesar.” Id. at 13. In closing, the district court concluded:
“Because Brito has provided nothing to the Court that would warrant any
reconsideration of his sentence, he has not demonstrated a reasonable
probability that but for counsel’s errors the result of the proceeding would have
been any different.” Id.
                               III.    Discussion
      We review de novo the district court’s ultimate legal conclusions and
review any findings of fact for clear error. United States v. Cong Van Pham,
722 F.3d 320, 323 (5th Cir. 2013). We agree with the district court’s ultimate
conclusion as to each issue.
      A. Presentence Interview Advice
      With respect to the advice during the presentence interview, we agree
that trial counsel’s advice represented reasonable strategy given the overall
strategy of seeking a lower sentence based upon (from his standpoint) Israel’s
lesser role in the conspiracy.        “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable . . . .” Strickland, 466 U.S. at 690. The strategy attributed to
Israel’s trial counsel is plausible: by not discussing offense conduct and thus
preserving Israel’s objections to total drug quantity, trial counsel was working
for an even greater reduction in offense level than Israel would have received
under § 3E1.1. As the district court stated, Israel cannot now disclaim his
attorney’s decisions just because he does not like the results or believes that
                                         7
     Case: 13-50348       Document: 00512933528         Page: 8     Date Filed: 02/11/2015



                                       No. 13-50348
his counsel made some mistakes. See Druery v. Thaler, 647 F.3d 535, 540 (5th
Cir. 2011) (“That [counsel] may have been mistaken in part of his legal
reasoning does not constitute ineffectiveness where the ultimate strategic
choice was reasonable.” (emphasis added)). We conclude that the district court
did not err in denying relief on this ground. 4
       B. Allocution Advice
       Israel and the Government disagree on the question of whether the
district court correctly determined that trial counsel had no duty to give advice
about the purpose of allocution. The right of allocution in federal courts is a
statutory one, not a constitutional one, and it is provided by Federal Rule of
Criminal Procedure 32(i)(4)(A)(ii): “Before imposing sentence, the court must:
. . . address the defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence . . . .” FED. R. CRIM. P.
32(i)(4)(A)(ii); see United States v. De La Paz, 698 F.2d 695, 697 (5th Cir. 1983)
(explaining the nature of the allocution right). The parties have not cited and
we have not located any federal circuit decisions squarely addressing the
question of constitutional ineffectiveness of counsel as it relates to advice about
allocution. We conclude that it is unnecessary to decide this question because
even if we assume for the sake of argument that trial counsel had such a duty
and failed to give such advice, the district court did not err in determining that
Israel was not prejudiced.
       Pursuant to Strickland’s prejudice prong, Israel bears the burden of
demonstrating “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 466 U.S. at



       4 Thus, we do not and need not decide whether to adopt the reasoning of United States
v. Washington, 619 F.3d 1252, 1261 (10th Cir. 2010), because, even assuming a duty to give
advice regarding the presentence interview, we conclude that the district court did not err in
its determination that trial counsel’s advice was strategic.
                                              8
    Case: 13-50348     Document: 00512933528     Page: 9   Date Filed: 02/11/2015



                                  No. 13-50348
694. “This is a heavy burden which requires a ‘substantial,’ and not just a
‘conceivable,’ likelihood of a different result.” United States v. Wines, 691 F.3d
599, 604 (5th Cir. 2012) (quoting Harrington v. Richter, 131 S. Ct. 770, 787,
792 (2011)); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Ransom
v. Johnson, 126 F.3d 716, 723 (5th Cir. 1997) (“To prevail on the prejudice
prong of Strickland, there must be more than the mere possibility of a different
outcome.”).
      Israel does not clearly articulate the precise advice that he should have
received, but assuming, without deciding, that his trial counsel should have
told him the purpose of allocution is “to permit the defendant to speak or
present any information to mitigate the sentence,” FED. R. CRIM. P.
32(i)(4)(A)(ii), nothing in the evidence he presented shows what difference such
advice might have made. Instead, it is perfectly logical that minimizing one’s
role in an offense, admitting one’s mistake, and showing regret—as Israel did
during allocution—would be “information to mitigate a sentence.” Israel’s
current evidence, which consists solely of his own affidavit and the sentencing
transcript, does not address how he might have reacted to such advice.
Instead, he asserts that if he “had understood that the point of addressing the
judge was to show why I pleaded guilty . . . I would have told the judge the
facts like what I had confessed and admitted in the factual basis.”
      Thus, Israel has not produced evidence showing that, given proper advice
from counsel, he would have stated anything differently that would be
substantially likely to produce a different result. See Wines, 691 F.3d at 604.
In addition, even assuming a duty to give advice about allocution, Israel does
not and cannot suggest that trial counsel must give the defendant a script. Nor
is allocution specifically a time to talk about “why I pleaded guilty.”         A
defendant is free to talk about that, of course, but that is not its specific
purpose.
                                        9
   Case: 13-50348     Document: 00512933528      Page: 10   Date Filed: 02/11/2015



                                  No. 13-50348
      Even so, assuming arguendo that his affidavit shows that he would have
“told the judge the facts like what [he] confessed and admitted in the factual
basis,” it is not these facts that are the problem. In his factual basis, Israel
says nothing about the Cardenas transactions or any transactions other than
the September 2003 conduct. It is these points that Israel did not address at
any time prior to sentencing, denied at sentencing, and, to this day, has not
admitted. Reviewing this evidence, the district judge concluded that there was
nothing to “reconsider” about his original sentence. Brito, No. 2:07-CR-132-
AM, order at 13 (W.D. Tex. Mar. 28, 2013), ECF No. 165.
      We review the district judge’s factual findings for clear error, and we
conclude none has been shown here. See United States v. Missio, 597 F.2d 60,
61–62 (5th Cir. 1979); see also Foster v. Wolfenbarger, 687 F.3d 702, 708 (6th
Cir. 2012) (“We give due deference to the conclusions of the trial judge on the
effectiveness of counsel, because ‘[t]he judge, having observed the earlier trial,
should have an advantageous perspective for determining the effectiveness of
counsel’s conduct and whether any deficiencies were prejudicial.’” (quoting
Massaro, 538 U.S. at 506)).
      In Missio, the petitioner filed a § 2255 petition arguing that six
convictions included in his presentence report were unconstitutionally
obtained and should not have been considered by the district judge at
sentencing. 597 F.2d at 60. We determined that it was not clear from the
transcript of the sentencing hearing whether the district judge had relied on
the six convictions in imposing sentence. Id. at 61–62 & n.1. As in Missio, it
is unclear from the transcript of the sentencing hearing what the district judge
meant when she said that she was considering a below-guidelines sentence but
“was waiting to hear something from Mr. Brito.” Since the same judge presided
over sentencing and the § 2255 proceeding, she is “in the best position to know”
what she meant by this statement. 597 F.2d at 61. Her statements in the
                                       10
    Case: 13-50348        Document: 00512933528          Page: 11     Date Filed: 02/11/2015



                                       No. 13-50348
order denying the § 2255 petition that Israel still has not accepted
responsibility for relevant conduct and “has provided nothing to the Court that
would warrant any reconsideration of his sentence,” indicates that, at
sentencing, she was “waiting to hear” something Israel has yet to say despite
all the time that has passed and the filing of Israel’s affidavit in the § 2255
proceeding. 5 The district judge’s determination that Israel still has not stated
what she was “waiting to hear” at the sentencing hearing is a factual finding
that is not clearly erroneous. This finding supports the conclusion that Israel
failed to meet his burden of showing “a ‘substantial,’ and not just a
‘conceivable,’ likelihood of a different result.” Wines, 691 F.3d at 604 (quoting
Richter, 131 S. Ct. at 787, 792). Accordingly, we conclude that the district court
did not err in denying relief on this issue.
       AFFIRMED.




       5See Brito, No. 2:07-CR-132-AM, order at 12–13 (W.D. Tex. Mar. 28, 2013), ECF No.
165 (“Most importantly, there is absolutely no indication in his § 2255 motion that he has
now fully accepted responsibility. Although he has submitted an affidavit admitting his guilt,
it amounts to nothing more than admitting to conduct discussed in the factual basis of the
plea agreement . . . . Brito still has not admitted to his post-2003 connection with Cesar Brito
and Adriana Cardenas.” (citations omitted)).
                                              11
