     Case: 11-10748       Document: 00512087707         Page: 1     Date Filed: 12/18/2012




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

                                                                            FILED
                                                                        December 18, 2012
                                     No. 11-10748
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plantiff-Appellee

v.

ALEJANDRO TAMAYO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CV-94
                             USDC No. 3:05-CR-313-1


Before REAVLEY, JOLLY, and, DAVIS, Circuit Judges.
PER CURIAM:*
       Alejandro Tamayo, federal prisoner # 34943-177, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion challenging his conviction for
conspiracy to possess with the intent to distribute more than 500 grams of
methamphetamine. This court granted a certificate of appealability on the issue
whether defense counsel grossly underestimated Tamayo’s probable guidelines
range of life imprisonment and thereby rendered his guilty plea involuntary.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10748     Document: 00512087707      Page: 2    Date Filed: 12/18/2012

                                  No. 11-10748

      Tamayo argues that his guilty plea was involuntary because trial counsel
grossly underestimated his sentencing exposure. He contends that counsel
erroneously advised him of a guidelines range of 10 to 12 years. Tamayo asserts
that his trial counsel did not understand the sentencing guidelines, as evidenced
by counsel’s statement in the objections to the PSR that Tamayo faced an offense
level of 30 or 31 without assault charges.
      With regard to the district court’s denial of a § 2255 motion, this court
reviews the district court’s factual findings for clear error and its conclusions of
law de novo. United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005).
“A finding is clearly erroneous only if it is implausible in the light of the record
considered as a whole.” St. Aubin v. Quarterman, 470 F.3d 1096, 1102 (5th Cir.
2006). Where the district court’s finding in a § 2255 proceeding rests upon
credibility determinations made after an evidentiary hearing, this court will not
substitute its reading of the evidence for that of the district court. United States
v. Nixon, 881 F.2d 1305, 1310 (5th Cir. 1989).
      “[A] guilty plea is not rendered involuntary because the defendant’s
misunderstanding was based on defense counsel’s inaccurate prediction that a
lesser sentence would be imposed.” Daniel v. Cockrell, 283 F.3d 697, 703 (5th
Cir. 2002), abrogation on other grounds recognized by United States v. Grammas,
376 F.3d 433, 437-38 (5th Cir. 2004) (emphasis in original). As long as the
defendant understood the term of imprisonment to which he might possibly be
sentenced, he was aware of the plea’s consequences. United States v. Santa
Lucia, 991 F.2d 179, 180 (5th Cir. 1993).            Nevertheless, “[b]y grossly
underestimating [the defendant’s] sentencing exposure . . ., [counsel] breache[s]
his duty as a defense lawyer in a criminal case to advise his client fully on
whether a particular plea to a charge appears desirable.” Grammas, 376 F.3d
at 436-37 (internal quotation marks and citations omitted).




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    Case: 11-10748    Document: 00512087707     Page: 3   Date Filed: 12/18/2012

                                 No. 11-10748

      The record supports a finding that counsel did not make an inaccurate
predication or grossly underestimate Tamayo’s sentence. Tamayo testified that
counsel informed him that his sentencing range would be 10 to 12 years with a
maximum sentence of 15 years. Counsel testified that he never made such a
prediction. Rather, he unequivocally stated that he began the calculation of the
guidelines range with a base offense level of 38. Counsel informed Tamayo of
the possibility of life imprisonment, and the record also shows that Tamayo was
aware of this possibility at the time he entered his guilty plea. Moreover,
counsel’s objections to the PSR do not provide support for a finding that counsel
estimated a sentencing range at 10 to 12 years. In the objections, counsel
acknowledged that even if the court granted “each and every objection set forth
in this document,” Tamayo’s offense level would remain at 37. The document did
not purport to argue that Tamayo’s offense level would be 30 or 31 based on the
crime for which he was convicted. Counsel specifically noted that a level 37
would be the minimum possible. He explained at sentencing that he advocated
for a sentence with an offense level range of 30 or 31, in the hopes that the
district court would depart from the guidelines range.
      The record supports the finding by the district court that Tamayo’s
representations before the trial court as well as the testimony from the
evidentiary hearing refute Tamayo’s contention that his guilty plea was
prompted by his counsel’s incorrect assumption that his sentencing range would
be 10 to 12 years; thus, the court’s finding is not clearly erroneous. See St.
Aubin, 470 F.3d at 1102. Tamayo’s assertion that he entered his guilty plea
based on the erroneous advice of counsel was rejected by the district court as
incredible, and this court will not disturb the finding. See Nixon, 881 F.2d at
1310. Thus, he fails to show that counsel’s performance was deficient.
      Accordingly, the judgment of the district court is AFFIRMED.




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