           Case: 13-10123   Date Filed: 04/06/2015   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10123
                         Non-Argument Calendar
                       ________________________

        D.C. Docket Nos. 1:12-cv-00493-CB; 1:05-cr-00013-CB-C-1



EDGAR SEGURA OCORO,

                                                           Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (April 6, 2015)

Before WILLIAM PRYOR, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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      Edgar Segura Ocoro appeals pro se the denial of his motion to vacate his

sentence of 240 months of imprisonment. 28 U.S.C. § 2255. We issued a certificate

of appealability to address two issues: (1) whether Ocoro was entitled to an

evidentiary hearing to determine if counsel was ineffective for failing to advise

Ocoro “about his options in pleading guilty . . . [and] the consequences of pleading

guilty”; and (2) whether counsel was ineffective for failing to object to the

enhancement of Ocoro’s sentence on the basis it “violated the explicit or implicit

assurances given to the Colombian government to secure [his] extradition.” We

affirm.

                                 I. BACKGROUND

      We divide our discussion in two parts. First, we discuss Ocoro’s extradition

from Colombia, his change of plea and sentencing proceedings, and his direct

appeal. Second, we discuss Ocoro’s motion to vacate his sentence.

          A. Ocoro’s Extradition, Guilty Plea Proceedings, and Direct Appeal

      In 2005, a federal grand jury charged Ocoro with conspiring to possess with

intent to distribute more than 50 kilograms of cocaine, 21 U.S.C. § 846, and

conspiring to launder money, 18 U.S.C. § 1956(h). Oroco fled to Colombia, but a

diplomatic note written by the Embassy of the United States in March 2009 stated

that the Colombian government had agreed to extradite Ocoro “pursuant to

Resolution No. 533, dated December 24, 2008.” The diplomatic note gave


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assurances that Ocoro would “not be subject to ‘forced disappearance,’ torture or

cruel or unusual punishment, degrading or inhumane treatment, ‘exile,’ life

imprisonment, ‘confiscation without due process of law,’ or the imposition of the

death penalty.” The diplomatic note also stated that Ocoro would not be sentenced

to imprisonment for life, although that was the maximum penalty for his offenses.

Ocoro had an initial appearance hearing on April 8, 2009.

      On June 1, 2009, the United States filed a notice of intent to enhance

Ocoro’s sentence. See 21 U.S.C. § 851. The notice stated that, on December 28,

1987, Ocoro had pleaded guilty in a Texas court to possessing a controlled

substance.

      On June 26, 2009, Ocoro entered an agreement to plead guilty to both

conspiracy charges in exchange for a recommendation from the United States that

Ocoro receive a reduction of his sentence for substantial assistance, see U.S.S.G.

§ 5K1.1; Fed. R. Crim. P. 35, or receive a sentence at the low end of his advisory

guideline range. The plea agreement stated that Ocoro faced a mandatory

minimum sentence of 20 years of imprisonment for conspiring to distribute cocaine

and a maximum penalty of 20 years of imprisonment for conspiring to launder

money and that Ocoro was waiving his right to challenge his sentence, subject to

certain exceptions. The agreement also stated that Ocoro “had the benefit of legal

counsel [during] negotiat[ions]”; he had conferred with counsel about “possible


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defenses to the charges” and was “completely satisfied with the legal advice”; his

“plea[s] of guilty [had been] freely and voluntarily made and [had] not [been] the

result of force, threats, promises, or representations apart from those” described in

the plea agreement; and he had received “no promises from anyone as to the

particular sentence that the Court [might] impose.” In the factual resume, Ocoro

admitted that he was responsible for “40 kilograms of cocaine.”

      During his change of plea hearing, Ocoro acknowledged that he was “fully

satisfied” with his attorney’s services; he “fully underst[ood] the terms and

conditions of the plea agreement and the factual resume[] and . . . agree[d] with

[them]”; and he had “commit[ted] the acts and [did] the things that [he had]

admitted to in” the factual resume. Ocoro also acknowledged that he had not been

induced or coerced to plead guilty and that he faced a sentence of 20 years of

imprisonment. The prosecutor stated that “the enhanced penalty [for conspiring to

distribute cocaine] is 20 years to life without parole” and that she was not

requesting the maximum penalty because of the “assurance given to [the country of

Colombia].” The district court accepted Ocoro’s pleas of guilty.

      Ocoro’s presentence investigation report provided that he had an adjusted

offense level of 35, a criminal history of IV, and an advisory guideline range

between 235 and 293 months of imprisonment. The report also provided that

Ocoro was subject to a mandatory minimum sentence of 20 years of imprisonment


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because of his prior conviction for possessing a controlled substance. See 21

U.S.C. § 851. Due to the enhancement, Ocoro faced a sentencing range of 240 to

293 months of imprisonment.

      Ocoro objected pro se to the enhancement of his sentence. Ocoro argued that

he had received “insufficient” notice; his prior conviction was too remote; and it

was “unconstitutional” for the prosecutor to exercise unfettered discretion to

determine whether to request the enhancement. The prosecutor responded that

Ocoro “had knowledge of the enhancement information at the time of his guilty

plea . . . pursuant to his plea agreement,” which “put[] his statutory minimum

mandatory [sentence] at 20 years.” Defense counsel stated that he and Ocoro had

discussed the mandatory minimum sentence. Defense counsel also stated that he

thought the “objections to the presentence report [were] moot based on the

enhancement that was filed and [because] . . . Ocoro ha[d] admitted . . . [to the]

prior conviction.”

      At sentencing, the district court overruled Ocoro’s objections. Ocoro stated

that “there [were] some points regarding the enhancement . . . that [his] attorney

[had] not presented,” but rather than address those issues, Ocoro said that his

attorney was obligated to “present them.” The district court considered the

statutory sentencing factors, see 18 U.S.C. § 3553(a), and sentenced Ocoro to 240

months of imprisonment.


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      Ocoro appealed, and counsel filed a motion to withdraw from further

representation and a brief in support. See Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967). We affirmed Ocoro’s convictions and sentence.

                            B. Ocoro’s Motion to Vacate

      Ocoro moved to vacate his sentence on three claims of ineffective assistance

of counsel. First, Ocoro argued that counsel had represented that the prosecutor

would withdraw the motion for enhancement after Ocoro changed his pleas from

not guilty to guilty. Second, Ocoro argued that his counsel should have advised

him that he could preserve his right to appeal by going to trial or pleading guilty

without an agreement and that he could undergo a trial on stipulated facts to

preserve any “non-jurisdictional errors.” Third, Ocoro argued that counsel should

have objected to the enhancement of his sentence on grounds that it violated the

doctrine of dual criminality and that the offense had occurred before December 17,

1997. Ocoro asserted that, had he known of the alternatives to entering a plea

agreement, he would have insisted on going to trial, having a bench trial on

stipulated facts, or entering a blind plea of guilty. Ocoro moved for an evidentiary

hearing.

      The district court denied Ocoro’s motion without an evidentiary hearing.

The district court ruled that Ocoro’s argument about being misled by counsel about

application of the enhancement was contradicted by Ocoro’s plea agreement and


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his statements during his change of plea hearing. Ocoro was not prejudiced by his

counsel’s failure to advise him about various methods of resolving his charges, the

district court determined, because Ocoro would have faced an increased sentencing

range had he gone to trial; Ocoro would have had the same result had he entered a

blind plea of guilty; and Ocoro’s “assertion that he would have chosen a trial based

on stipulated facts [was] . . . illusory” because “a trial of that type requires the

agreement of both parties, and there [was] no basis for concluding that the

government would have been amenable to such a proceeding.” The district court

also ruled that an objection to the sentence enhancement would have been

“frivolous.” Ocoro failed to provide “any legal or factual support[ for his

argument] that no Colombian citizen can be extradited for any acts committed

before 1997”; he was not extradited for “the prior offense charge”; and his

extradition did not violate the doctrine of dual criminality because he offered no

argument that “the offenses charged in [his] indictment [were] not serious offenses

in Colombia.”

                          II. STANDARDS OF REVIEW

      On denial of a motion to vacate a sentence, we review findings of fact for

clear error and the application of law to those facts de novo. Dell v. United States,

710 F.3d 1267, 1272 (11th Cir. 2013). We review the denial of an evidentiary




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hearing for abuse of discretion. Brown v. United States, 720 F.3d 1316, 1335 n.3

(11th Cir. 2013).



                                  III. DISCUSSION

       Oroco argues that his trial counsel provided deficient representation. Oroco

argues that his counsel was ineffective for failing to object to the enhancement on

the ground that it violated the assurances provided to the Colombian government.

Ocoro also argues that he is entitled to an evidentiary hearing to determine whether

his counsel provided inadequate advice about the processes available to resolve his

criminal charges. His arguments fail.

       We review de novo the denial of a claim of ineffective assistance. Osley v.

United States, 751 F.3d 1214, 1222 (11th Cir. 2014). To prevail on that claim, a

movant must satisfy a two-part standard. See Strickland v. Washington, 466 U.S.

668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The movant must first prove

“that counsel made errors so serious that [he] was not functioning as the ‘counsel’

guaranteed . . . by the Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064. If

counsel’s performance was deficient, the movant must also prove that counsel’s

error was “so serious as to deprive [him] of a fair trial, a trial whose result is

reliable.” Id.




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      The district court did not err by denying Ocoro’s claim that counsel made a

professional error by failing to object to the enhancement of Ocoro’s sentence

based on the violation of assurances given to Colombia. The application of the

enhancement did not violate the assurances in the diplomatic note that Ocoro

would not be mistreated or receive a sentence of life imprisonment. Ocoro argues

that the sentence enhancement violates the rule of specialty because it conflicted

with an assurance that he would be prosecuted in compliance with Article 35 of the

Constitution of Colombia, which requires that the conduct underlying the criminal

charge occur before December 17, 1997. But “[t]he rule of specialty applies only to

extraditions pursuant to treaty,” United States v. Valencia-Trujillo, 573 F.3d 1171,

1179 (11th Cir. 2009), and Ocoro fails to cite any treaty between the United States

and Colombia under which he was purportedly extradited. According to the

diplomatic note, the “Government of Colombia . . . approved [Ocoro’s] extradition

. . . pursuant to Resolution Number 533, dated December 24, 2008.” Ocoro was not

extradited under a treaty and lacked standing to assert a violation of the rule of

specialty. Because the enhancement of Ocoro’s sentence did not violate any

assurances given for his extradition, “[t]here was no reason for counsel to object.”

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001).

      The district court also did not abuse its discretion when it denied Oroco an

evidentiary hearing on his claim that his counsel failed to advise him of the


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methods available to resolve his criminal charges. An evidentiary hearing is

unnecessary when “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); Gordon v.

United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Even if we were to assume

that counsel was deficient for failing to inform Ocoro that he could go to trial,

plead guilty without the benefit of an agreement, or request a trial based on

stipulated facts, Ocoro could not establish “a reasonable probability” that the

outcome of his case would have been different. See Strickland, 466 U.S. at 694,

104 S. Ct. at 2068. Oroco does not deny that he conspired to possess with intent to

distribute cocaine, see 21 U.S.C. § 846, and regardless of the method of his

conviction, he would have faced, at a minimum, a sentence of 20 years of

imprisonment for having a prior conviction for a drug offense, id. §§ 841(b)(1)(A),

851. Oroco argues that he could have preserved his right to appeal had he disposed

of his charges by means other than pleading guilty with an agreement, but he does

not identify any issue that he would have raised on appeal. And Ocoro fails to

recognize that, without his plea agreement, he would likely have received a longer

sentence because he would not have received a reduction of his offense level for

his acceptance of responsibility, see U.S.S.G. 3E1.1, nor would the government

have been obligated to recommend that he receive a sentence at the low end of his

advisory guideline range. Because the district court could determine from the


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record that Ocoro was not entitled to postconviction relief, no evidentiary hearing

was required to resolve his claim of ineffective assistance.

                                IV. CONCLUSION

      We AFFIRM the denial of Ocoro’s motion to vacate.




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