                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0606n.06

                                          No. 16-1082                                 FILED
                                                                                Nov 16, 2016
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


MARIO HAIRSTON,                                  )
                                                 )
         Petitioner-Appellant,                   )         ON APPEAL FROM THE
                                                 )         UNITED STATES DISTRICT
v.                                               )         COURT FOR THE EASTERN
                                                 )         DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,                        )
                                                 )
                                                                   OPINION
         Respondent-Appellee.                    )
                                                 )


Before: MOORE, SUTTON, and WHITE, Circuit Judges.

         KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Mario Hairston filed

a Motion to Vacate or Set Aside Conviction and Sentence Pursuant to 28 U.S.C. § 2255 alleging

that his attorney provided ineffective assistance by failing adequately to advise him about a plea

offer.   The district court determined that Hairston’s attorney did not perform deficiently.

Because the district court based this determination on findings of fact that were not clearly

erroneous, we AFFIRM the district court’s judgment.

                                      I. BACKGROUND

A. Complaint, Indictment, and Plea Negotiations

         A criminal complaint filed March 13, 2012 charged Hairston with “[f]elon in possession

of a firearm” in violation of 18 U.S.C. § 922(g)(1), “[d]ischarge of a firearm in relation to any

crime of violence” in violation of 18 U.S.C. § 924(c)(1)(A)(iii), “[i]nterference with commerce

by threats or violence (Hobbs Act)” in violation of 18 U.S.C. § 1951(a), and “[d]elivery of a
No. 16-1082
Mario Hairston v. United States


controlled substance (marijuana)” in violation of 21 U.S.C. § 841(a)(1). R. 1 (Crim. Compl. at

1) (Page ID #1). These charges stemmed from two separate, unrelated events: the search of

Hairston’s home, during which law enforcement found a gun, ammunition, and marijuana; and

the armed robbery of a convenience store. Id. at 2–8. Because Hairston was on parole from the

Michigan Department of Corrections, after his arrest on the new charges he was taken into state

custody for violating parole. R. 52 (§ 2255 Mot. to Vacate at 5) (Page ID #302); Appellee Br. at

2.

       Attorney Andrew Densemo of the Federal Defender Office entered an appearance as

counsel for Hairston in his federal case on April 18, 2012. R. 5 (Appearance at 1) (Page ID #12).

Densemo and the federal prosecutor attempted to negotiate a pre-indictment plea agreement. R.

67 (Evid. Hr’g Tr. at 68) (Page ID #478); R 68-5 (Evid. Hr’g Ex. E) (Page ID #505–07).

Densemo and the government exchanged emails about a possible plea agreement on May 3 and

May 8, 2012. At that time, both parties were under the mistaken impression that Hairston was a

career offender. R. 68-1 (Evid. Hr’g Ex. A) (Page ID #494); R. 68-2 (Evid. Hr’g Ex. B) (Page

ID #496). The government made its second plea offer on May 15, 2012. R. 68-3 (Evid. Hr’g

Ex. C) (Page ID #499). The offer called for Hairston to plead to the § 924(c) charge and agree

that the robbery could be considered as relevant conduct. Id. The government would agree not

to charge Hairston for the drugs or being a felon in possession of a firearm. Id. Under the

agreement, Hairston could ask for the mandatory minimum of ten years (120 months) but the

government could ask for any sentence within or below the guideline range. Id.



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       There is conflicting testimony about whether Densemo knew that Hairston was not a

career offender when he discussed the second offer with Hairston. Hairston says that when

Densemo discussed the second plea offer with him, Densemo was still unsure whether Hairston

was a career offender. R. 67 (Evid. Hr’g Tr. at 50–51) (Page ID #460–61). Because of this

uncertainty, Hairston says, Densemo was not able to tell him whether he would receive an

additional ten or fifteen years on top of the ten-year minimum set out in the plea. Id. Densemo

says that by this point, he had investigated the issue and determined that Hairston was not a

career offender. Id. at 435–36, 446–47. Densemo says that Hairston rejected the second plea

offer not because he was unsure whether he would get an additional ten to fifteen years, but

because he did not want to plead to a minimum of ten years without more time to investigate the

case. Id. at 436.

       On June 4, 2012, Densemo informed the government that Hairston was “prepared to plea

to charges stemming from the execution of the search warrant, but none associated with the

robbery.” R. 68-5 (Evid. Hr’g Ex. E) (Page ID #505). The government insisted on a plea that

included the robbery. Id. at 506.

       Because the parties could not negotiate a pre-indictment plea, the government filed an

indictment on June 21, 2012 charging Hairston with interference with commerce by threats and

violence in violation of 18 U.S.C. § 1951(a) and discharge of a firearm during and in relation to a

crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), which were the charges stemming

from the convenience-store robbery. R. 7 (Indictment at 1–3) (Page ID #16–18).



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       Hairston eventually pleaded guilty to both counts of the indictment, agreeing to a

sentence of 157 months of imprisonment. R. 33 (Plea Agreement at 2, 5) (Page ID #181, 184);

see also R. 46 (Plea Hr’g Tr. at 17–18) (Page ID #271–72); R. 47 (Sent’g Hr’g Tr. at 4–5, 16)

(Page ID #277–78, 289). The offer was initially for 180 months, but the government agreed to

revise the offer to 157 months to account for the time Hairston spent in state custody for the

parole violation. R. 67 (Evid. Hr’g Tr. at 41) (Page ID #451). When indicting Hairston for the

charges stemming from the robbery, the government also separately indicted him for charges

resulting from the search of his home; those charges were dropped as part of the plea agreement.

Appellant Br. at 3, 7; Appellee Br. at 2.

B. Hairston’s § 2255 Motion to Vacate Sentence

       This case is before us on Hairston’s Motion to Vacate or Set Aside Conviction and

Sentence Pursuant to 28 U.S.C. § 2255. Hairston alleges that his attorney, Densemo, provided

ineffective assistance during plea negotiations.

       First, Hairston alleges that “counsel failed to adequately advise Petitioner as to a plea

offer made by the prosecution for only 120 months incarceration.” R. 52 (Mot. to Vacate at 3)

(Page ID #300). More specifically, Hairston alleges that Densemo did not adequately explain his

career-offender status while the government’s second plea offer was available, which prevented

Hairston from accepting the offer. At the evidentiary hearing, Hairston testified that when they

discussed the government’s second plea offer Densemo “was still unsure” whether Hairston

would be classified as a career offender. R. 67 (Evid. Hr’g Tr. at 51) (Page ID #461). Hairston



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further testified that if he had understood that he was not a career offender, and therefore would

not have been exposed to an additional ten years of incarceration, he was “certain” he would

have accepted the offer. Id. at 462. Densemo testified that by the time the government made the

second offer, he had researched the issue and was sure that Hairston was not a career offender.

Id. at 435–36, 446–47. Densemo further testified that he recalled Hairston rejecting the 120-

month offer not because of uncertainty about his career-offender status but because “Mr.

Hairston was uncomfortable accepting a plea with that much time without having fully reviewed

the Government’s case, and we had not at that time.” Id. at 436.

       Second, Hairston alleges that, “Petitioner’s plea in this matter was premised specifically

on his understanding from his counsel that he would receive (substantial) credit for his time

served,” but that he has not received time-served credit. R. 52 (Mot. to Vacate at 3) (Page ID

#300). So “[w]hile Petitioner is challenging the BOP’s calculation of his sentence, Petitioner is

also challenging his counsel’s advice, if found to be erroneous.” Id. Hairston testified that when

he accepted the government’s 157-month offer, he believed he would receive credit for the

approximately twenty-three to twenty-four months he spent in state custody for the parole

violation. R. 67 (Evid. Hr’g Tr. at 53) (Page ID #463). Densemo testified that he addressed the

issue of time-served credit.      Densemo “was concerned that the time that [Hairston] was

spending [in state custody] would not be credited” and “wanted to make sure that that didn’t

happen.” Id. at 451. To ensure that Hairston would be credited for the time he spent in state

custody, Densemo negotiated with the government to revise the plea offer from 180 months



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down to 157 months. Id. at 449–51. Densemo testified that he kept Hairston informed about the

negotiation over credit for the time served in state custody. Id. at 452.

C. The District Court’s Ruling on Hairston’s § 2255 Motion

       Following the evidentiary hearing, the district court denied Hairston’s § 2255 motion.

Regarding Hairston’s allegation that Densemo did not adequately advise Hairston as to the

government’s second plea offer, the district court found that, “[t]he record plainly indicates that

Densemo was communicating all plea discussions, including offers and rejections, with

Hairston”; that “the record establishes that Hairston was fully engaged in the plea negotiation

process”; and that “[t]he record simply does not support” the conclusion “that Densemo failed to

adequately advise Hairston regarding the pre-indictment plea offer.” R. 71 (Order Denying

§ 2255 Mot. to Vacate at 8–9) (Page ID #554–55).                Regarding Hairston’s allegation that

Densemo did not adequately advise Hairston as to credit against his federal sentence for time

served in state custody, the district court found that “Densemo kept open communications with

Hairston” so that “[w]hen he pled guilty, Hairston knew, or should have understood, that his time

with the MDOC was not going to be credited against his federal sentence.”                Id. at 557.

Accordingly, the district court held that Hairston did not satisfy Strickland’s deficient-

performance prong as to either allegation. Id. at 555, 557. The district court also held that

Hairston did not satisfy Strickland’s prejudice prong as to either allegation because Hairston

testified that he did not want to go to trial. Id. at 557–58.




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                                       II. DISCUSSION

       To be entitled to relief on a § 2255 motion to vacate a sentence, a petitioner “must allege”

“an error of constitutional magnitude”; a sentence “outside the statutory limits”; or “an error of

fact or law that was so fundamental as to render the entire proceeding invalid.” Pough v. United

States, 442 F.3d 959, 964 (6th Cir. 2006). In this case, Hairston alleged ineffective assistance of

counsel, “placing his claim within the first of the three categories listed above.” Id. To prevail

on this claim, Hairston must show that “counsel’s representation fell below an objective standard

of reasonableness” and that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984).

       Although we review the denial of a motion to vacate a sentence de novo, we review the

district court’s findings of fact for clear error. Pough, 442 F.3d at 964. “A finding is ‘clearly

erroneous’ when, although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed.”

Guerrero v. United States, 383 F.3d 409, 416 (6th Cir. 2004) (quoting United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948)). “The burden is on the appellant to prove that a

finding is clearly erroneous; this requires more than a showing of conflicting testimony.” Id.

A. Failure Adequately to Advise about Career-Offender Status

       The district court’s finding that Densemo adequately advised Hairston about his career-

offender status is not clearly erroneous. Hairston testified that Densemo did not know whether



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Hairston was a career offender when they discussed the government’s second plea offer and that,

if Hairston had been sure that he was not a career offender, he would have accepted the offer.

R. 67 (Evid. Hr’g Tr. at 51–52) (Page ID #461–62). On the other hand, Densemo testified that,

by the time they discussed the government’s second offer, he was sure Hairston was not a career

offender and was able properly to advise Hairston. Id. at 435, 446–47. The plea-negotiation

emails that Densemo exchanged with the prosecutor indicate that Densemo was in regular

communication with Hairston about the plea negotiations and support his testimony.

       The testimony conflicts, but showing that a district court’s factual findings are clearly

erroneous “requires more than a showing of conflicting testimony.” Guerrero, 383 F.3d at 416.

The district court credited Densemo’s testimony. Nothing in the record, including the plea

negotiation emails and Hairston’s testimony at other hearings, leaves us “with the definite and

firm conviction that a mistake has been committed.” Id. Consequently, Hairston cannot meet his

burden to prove that the district court’s finding was clearly erroneous. Because the district

court’s finding that Densemo adequately advised Hairston about his career-offender status was

not clearly erroneous, there is no basis for us to disturb the district court’s holding that

Densemo’s representation satisfied an objective standard of reasonableness. See Strickland, 466

U.S. at 688. Because Hairston cannot satisfy Strickland’s deficient-performance prong, we need

not address Strickland’s prejudice prong. See Pough, 442 F.3d at 968.




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B. Failure Adequately to Advise about Time-Served Credit

       The district court’s finding that Densemo adequately advised Hairston about his time-

served credit is also not clearly erroneous.       Hairston testified that when he accepted the

government’s 157-month offer, he believed he would receive credit for the approximately

twenty-three to twenty-four months that he spent in state custody because of his parole violation.

R. 67 (Evid. Hr’g Tr. at 463). On the other hand, Densemo testified that while he indicated to

Hairston that “he was entitled to receive credit” and “should receive credit” on his federal

sentence for time served in state custody, he could not be sure that Hairston would receive credit.

Id. at 441–42. In general, Densemo’s practice was to tell clients they “should” receive credit, not

that they “would” receive credit, because he could not be sure what the federal Bureau of Prisons

or Michigan Department of Corrections would do. Id. at 441. And in this case in particular,

Densemo “was concerned that the time that he was spending [in state custody] would not be

credited” because Hairston was serving time for a parole violation. Id. at 451. Densemo

“wanted to make sure that that didn’t happen” so he acted on this concern. Densemo negotiated

with the government to reduce the term of imprisonment in the plea offer by twenty-three

months to account for Hairston’s time in state custody. Id. Densemo testified that he kept

Hairston informed about the plea negotiations, including the negotiation about revising the plea

offer to ensure Hairston received credit for his time served in state custody. Id. at 452.

       As with the testimony regarding the second plea offer, the testimony regarding time-

served credit conflicts. It is worth emphasizing a second time that showing that a district court’s



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factual findings are clearly erroneous “requires more than a showing of conflicting testimony.”

Guerrero, 383 F.3d at 416. Again the district court credited Densemo’s testimony and again

nothing in the record leaves us “with the definite and firm conviction that a mistake has been

committed.” Id. Consequently, Hairston cannot meet his burden to prove that the district court’s

finding was clearly erroneous. Because the district court’s finding that Densemo adequately

advised Hairston about time-served credit was not clearly erroneous, there is no basis for us to

disturb the district court’s holding that Densemo’s representation satisfied an objective standard

of reasonableness. See Strickland, 466 U.S. at 688. Because Hairston cannot satisfy Strickland’s

deficient-performance prong, we need not address Strickland’s prejudice prong. See Pough, 442

F.3d at 968.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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