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

                                                 FILED
                                                                         September 1, 2009

                                     No. 08-30886                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

RONNIE RAY RADEMACHER,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:07-CV-1569


Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ronnie Ray Rademacher appeals the district court’s ruling rejecting his
claim of ineffective assistance of counsel. Rademacher plead guilty to conspiracy
to possess with intent to distribute over 50 grams of methamphetamine and was
sentenced to 240 months in prison. Prior to the plea, Rademacher’s attorney,
Robert Noel, had secured a plea agreement from the government containing
standard cooperation language. Rademacher and Noel then met twice with DEA


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-30886

agents in an effort to convince the government to make a motion under 18 U.S.C.
§ 3553(e) which would allow the district court to impose a sentence below the
mandatory minimum of twenty years. Noel informed Rademacher that he had
use immunity and that it was in his interest to share all information with the
government. The meetings “did not go well” and the agents informed Noel that
the DEA did not believe Rademacher would be able to provide information
needed in order to get relief from the federal government. Noel attempted to
obtain additional meetings with the DEA but was rebuffed.                 Rademacher
claimed that the failure to inform him of the government’s intention to not file
a § 3553(e) motion was in error and resulted in ineffective assistance of counsel
denying him of his Sixth Amendment rights. He filed a motion under 18 U.S.C.
§ 2255 to set aside the sentence. After an evidentiary hearing, the magistrate
judge recommended a denial of the motion.                The district court agreed and
Rademacher now appeals.
      In reviewing a denial of a § 2255 motion we review the district court’s
mixed factual and legal findings regarding ineffective assistance of counsel de
novo and review any factual findings under the clearly erroneous standard.1
      An ineffective assistance of counsel claim in this situation is evaluated
under the standard set forth in Strickland v. Washington, which requires the
petitioner to demonstrate both “that counsel’s performance was deficient” and
“that the deficient performance prejudiced the defendant.” 2 Deficiency is found
where counsel’s performance “falls short of reasonable performance under
prevailing professional norms.”3 “In a guilty plea situation, to satisfy the second
prong of the Strickland test, the defendant must show that ‘there is a reasonable


      1
          United States v. Culverhouse, 507 F.3d 888 (5th Cir. 2007).
      2
          466 U.S. 668, 687 (1984).
      3
          Day v. Quarterman, 566 F.3d 527 (5th Cir. 2009).

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                                        No. 08-30886

probability that, but for the counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.’” 4
       In this case, the record demonstrates that Noel’s performance was not
deficient. Noel told Rademacher “point blank” that unless the government
recommended a reduction under § 3553(e), he would face a minimum of twenty
years in prison.      At no point did Noel suggest to Rademacher that such a
recommendation was likely, and it is clear from the record that Rademacher
understood that the information he had given to the government was not
sufficient. While it appears from the record that even after the plea Rademacher
continued to believe there was an opportunity to obtain a sentence reduction
under § 3553(e), there is nothing to indicate that Noel led Rademacher to this
belief. None of the magistrate’s findings were clearly erroneous.
       Given the factual record, it is clear that the district court’s finding that
Noel was not deficient was not in error.               Noel provided Rademacher with
accurate advice concerning the urgency of cooperating with the DEA and the
nature of the plea agreement. That Rademacher still believed before and after
his plea that he would be able to cooperate and obtain a reduced sentence, even
after the first two meetings had failed was not due to Noel’s performance. For
these reasons, the district court’s decision denying Rademacher’s motion is
AFFIRMED.




       4
         Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir. 1994) (quoting Hill v. Lockhart, 474 U.S.
52, 59 (1985)).

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