                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 09-2972
                     _____________

           UNITED STATES OF AMERICA

                            v.

                     JOHN NIGRO,
                                Appellant
                     _____________

       Appeal from the United States District Court
         for the Eastern District of Pennsylvania
         (D.C. Criminal No. 2-05-cr-00062-001)
        District Judge: Honorable Jan E. Dubois
                     _____________

       Submitted Under Third Circuit LAR 34.1(a)
                   March 14, 2011

Before: RENDELL, BARRY and CHAGARES, Circuit Judges

            (Opinion Filed: March 24, 2011)
                   _____________

              OPINION OF THE COURT
                  _____________
RENDELL, Circuit Judge.

       Appellant John Nigro appeals the District Court’s decision denying his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his sentence. We will affirm.1

                           Factual & Procedural Background

       On November 1, 2004, the government obtained an arrest warrant for Nigro in

connection with the burglary of a residence in Philadelphia on October 12, 2004. On

December 10, 2004, the police received information that Nigro was armed with a gun at a

residence on Gladstone Street in Philadelphia. Upon arriving at the residence, the police

found Nigro curled up in the backyard, lying next to a green bag. The police arrested him

and discovered a loaded .38 caliber gun in the green bag.

       In light of Nigro’s numerous prior felony convictions,2 a grand jury returned an

indictment charging him with possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1).3 Federal Defender Kai Scott was appointed to represent Nigro.

Following the indictment, Nigro participated in an “off-the-record” proffer session,

during which he admitted possessing the gun and explained how he obtained it. The


1
 The District Court had jurisdiction over this case by virtue of 28 U.S.C. § 2255. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 2253.
2
 Nigro had twenty criminal history points, resulting from thirteen adult convictions,
which included six burglary offenses, in addition to numerous juvenile convictions.
3
  The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), states, “[i]n the case
of a person who violates section 922(g) . . . and has three previous convictions . . . for a
violent felony or a serious drug offense, or both . . . such person shall be fined under this
title and imprisoned not less than fifteen years . . . .” Pursuant to §§ 924(e)(2)(B) and
(e)(2)(B)(ii), a “violent felony” includes a “burglary,” which is punishable by
imprisonment for a term exceeding one year.

                                             2
session ended without a plea agreement, as Nigro stated that “[he] didn’t want to tell on

anybody.”

       Following the proffer session, Scott filed two motions on behalf of Nigro seeking

to suppress the gun recovered at the time of arrest. Due to a disagreement with Scott,

Nigro withdrew the suppression motions and moved to dismiss Scott. The District Court

then appointed Mark Greenberg to represent Nigro, who then reinstated the suppression

motions and moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

After the Court initially denied the motion for a Franks hearing, Nigro filed a pro se

motion requesting such a hearing; the Court held a hearing, after which it denied the

Franks and suppression motions.

       Nigro proceeded to trial, where a jury found him guilty of violating 18 U.S.C.

§ 922(g)(1). Initially, the Probation Office determined that his base offense level was

twenty-four under U.S.S.G. § 2K2.1(a)(2).4 Subsequent to his conviction, but before

sentencing, Nigro discovered and informed his trial counsel of the Supreme Court’s

decision in Shepard v. United States5; his counsel then successfully argued that the


4
  This section applies where a defendant has two prior felony convictions for crimes of
violence or a controlled substance offense. If a defendant has only one prior felony
conviction for a crime of violence or a controlled substance offense, the base offense
level is twenty. U.S.S.G. § 2K2.1(a)(4)(A).
5
  544 U.S. 13 (2005). As mentioned, the ACCA’s fifteen year mandatory minimum
sentence applies to a defendant who committed three previous violent felonies or serious
drug offenses. (See supra, note 3). In Taylor v. United States, the Supreme Court held
that a burglary qualifies as a violent felony under the ACCA if it is a “generic” burglary,
defined as an “unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” 495 U.S. 575, 599 (1990). In Shepard, the
Court held that in order to prove that a defendant had committed previous generic

                                             3
offense level was twenty – as opposed to twenty-four – because the government could not

provide the documentation permissible under Shepard to prove that Nigro’s burglary

convictions were “crimes of violence,” as defined in U.S.S.G. § 4B1.2.

       In turn, the Probation Office concluded that Nigro did not qualify as an armed

career criminal under 18 U.S.C. § 924(e), and therefore was not subject to the mandatory

fifteen year minimum sentence dictated by that statute. The government agreed that

Nigro’s base offense level was twenty, as prescribed by U.S.S.G. § 2K2.1(a)(4)(A), and

that his advisory guideline range was seventy to eighty-seven months. Due to the

seriousness of Nigro’s criminal record, the government moved for an upward departure

under U.S.S.G. § 4A1.3, and defense counsel then recommended that the Court sentence

Nigro to ninety-six months; the government did not object to this recommendation. The

District Court sentenced Nigro to a prison term of ninety-six months.

       Following his conviction and imposition of sentence, Nigro filed a pro se petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, alleging, inter alia, that he

received ineffective assistance of counsel. Specifically, he averred that his trial attorney

had advised him that due to his criminal record, he would be subject to the ACCA’s

fifteen year mandatory minimum sentence regardless of whether he proceeded to trial.

Nigro argued that had his counsel properly advised him about the impact of Shepard on


burglaries, as opposed to non-generic burglaries, the prosecution could only rely on the
“terms of a plea agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” 544 U.S. at 26. The government cannot
rely on police reports or complaint applications as proof of the nature of the previous
burglaries. Id.

                                              4
his possible sentence, namely, that the government could not utilize his prior burglary

convictions to qualify him as a violent felon under the ACCA, he would have pled guilty

in order to receive a sentence reduction for acceptance of responsibility.6 In support of

his testimony asserting that he would have pled guilty, Nigro highlighted that a plea deal

would have led to a sentence that was twenty-one to twenty-seven months less than what

he received.

       The District Court found that Nigro’s trial attorney’s performance was deficient in

failing to advise Nigro of the ramifications of Shepard; however, the Court ruled that this

deficiency did not prejudice Nigro, and this appeal followed. We agree and will affirm

the District Court’s order.

                                         Discussion

       We “exercise plenary review over the District Court’s legal conclusions and apply

a clearly erroneous standard to the court’s factual findings.” United States v. Cepero, 224

F.3d 256, 258 (3d Cir. 2000). “If the district court’s account of the evidence is plausible

in light of the record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently. Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of


6
 Specifically, the defendant testified:
       Q:      If in fact you had known that the 15 years might not have been on the table
       that you were going to get a guideline sentence what would you have done?
       A:      Pled guilty.
(App’x at 429-30.) The defendant also highlights that he had attended a proffer session
as proof that he would have been willing to plead.

                                              5
Bessemer City, 470 U.S. 564, 573-74 (1985). Furthermore, “when a trial judge’s finding

is based on his decision to credit the testimony of one of two or more witnesses, each of

whom has told a coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can virtually never be clear error.”

Id. at 575.

       In order to prevail on an ineffective assistance of counsel claim, “the defendant

must show that counsel’s performance was deficient,” meaning “that counsel’s

representation fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). Additionally, “the defendant must show that

[counsel’s] deficient performance prejudiced the defense.” Id. at 687. The defendant

suffered prejudice if “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Furthermore, this Court has held that “a defendant has the right to make a reasonably

informed decision whether to accept a plea offer,” and that “[k]nowledge of the

comparative sentence exposure between standing trial and accepting a plea offer will

often be crucial to the decision whether to plead guilty.” United States v. Day, 969 F.2d

39, 43 (3d Cir. 1992).

       Here, the District Court held – and it is not contested – that Nigro’s trial counsel

was deficient by not advising him about the implications of Shepard. The issue presented

is whether this deficiency prejudiced Nigro, that is, whether there is a reasonable

probability that he would have pled guilty had he been advised about Shepard.




                                               6
       In United States v. Booth, 432 F.3d 542, 549 (3d Cir. 2005), we held that a

defendant was entitled to an evidentiary hearing on a § 2255 petition to decide whether

his attorney’s failure to instruct him that he could enter open guilty pleas was prejudicial,

where the asserted failure and decision to proceed to trial potentially resulted in an

additional imprisonment of nineteen to thirty months.     Id. We found error in the district

court’s decision not to hold an evidentiary hearing to determine whether the defendant

would have pled guilty and received a more lenient sentence. Id. at 545.7

       In contrast, the District Court here did hold an evidentiary hearing to determine the

validity of Nigro’s habeas motion. Specifically, the Court heard testimony from both

Nigro and his trial counsel with regard to his willingness to plead, and found Nigro’s

contentions not to be believable or credible. The trial counsel’s testimony demonstrated

that Nigro “hated cops” and that he was adamant the police lied when they obtained the

arrest warrant. These facts suggest that Nigro did not intend to plead, regardless of

whether he was classified as an armed career criminal and subject to the mandatory

minimum fifteen year sentence. This conclusion is buttressed by the fact that trial

counsel could not have guaranteed Nigro that he would not be subject to the ACCA’s

mandatory minimum sentence, but rather only could have suggested that the government

might have difficulty in proving that he should be subject to it.

7
  Nigro relies on additional cases for the proposition that the disparity between sentences
is sufficient evidence that he would not have gone to trial had he known that a less
lengthy sentence was available. See Day, 969 F.2d at 43 (“Knowledge of the
comparative sentence exposure between standing trial and accepting a plea offer will
often be crucial to the decision whether to plead guilty.”); United States v. Zelinsky, 689
F.2d 435, 438 (3d Cir. 1982). As the government notes, however, the relative disparity
between potential sentences is not that apparent given Nigro’s extensive criminal record.

                                              7
       Nigro argues that the proffer session is evidence of a willingness to plead. This is

unpersuasive, however, given that at the time of the proffer session, Nigro mistakenly

believed that his cooperation could lead to a sentence less than the mandatory fifteen year

minimum. (App’x at 428.) Despite this belief that cooperation could reduce his sentence

below the fifteen year minimum threshold, Nigro was nevertheless unwilling to continue

the proffer session because he did not want to “tell on anybody.” Accordingly, the

District Court’s conclusion that Nigro would not have pled guilty had he known that the

ACCA might not apply was not clearly erroneous.

       As a result, Nigro failed to demonstrate “a reasonable probability” that, but for his

counsel’s error, he would have pled guilty.

                                          Conclusion

       For the foregoing reasons, the District Court did not clearly err in crediting the

testimony and we will affirm its order.




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