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

                                                 FILED
                                                                          February 16, 2009

                                       No. 07-20220                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

MARIO ARTURO FERNANDEZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:05-CR-64-3


Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
       Pursuant to a certificate of appealability (“COA”) granted by this court,
Mario Arturo Fernandez, federal prisoner # 39078-179, appeals the denial of his
28 U.S.C. § 2255 motion in which he challenged his guilty plea conviction for
being a felon in possession of a firearm and conspiring to sell or dispose of
firearms to aliens, engage in a business of dealing firearms without a license,
and falsify statements.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-20220

      Fernandez contends that his trial counsel rendered ineffective assistance
by advising him he would be entitled to a sentence reduction under U.S.S.G. §
3E1.1 for acceptance of responsibility if he pled guilty.         Fernandez was
ultimately denied the reduction because the presentence report (“PSR”)
recommended that he had obstructed justice. Fernandez further contends that
his guilty plea was involuntary and that he would not have pleaded guilty but
for counsel’s advice that he would be entitled to a sentence reduction under
§3E1.1.
      A prisoner claiming counsel’s ineffectiveness rendered his guilty plea
involuntary must show: “there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). If a defendant enters a guilty
plea on the advice of counsel, the voluntariness of the plea turns “on whether
[the] advice was within the range of competence demanded of attorneys in
criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970). A defendant
who seeks to prevail on a claim that his plea was involuntary due to counsel’s
representations concerning the sentence he would receive must show that his
plea was motivated by an “actual promise.” Smith v. McCotter, 786 F.2d 697,
701 (5th Cir. 1986) (emphasis omitted). To prevail on the theory of an actual
promise, the petitioner must prove: (1) the exact terms of the promise; (2) exactly
when, where, and by whom the promise was made; and (3) “the precise identity
of an eyewitness to the promise.” Id. (internal citations omitted).
      Further, “[a] guilty plea is not rendered involuntary by the defendant's
mere subjective understanding that he would receive a lesser sentence. In other
words, if the defendant’s expectation of a lesser sentence did not result from a
promise or guarantee by the court, the prosecutor or defense counsel, the guilty
plea stands.” Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir. 2002), abrogation
on other grounds recognized by United States v. Gammas, 376 F.3d 433, 437-38

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                                     No. 07-20220

(5th Cir. 2004). Similarly, “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.” Id. (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).
      Counsel’s affidavit does not support Fernandez’ claim that he was
promised a reduction under § 3E1.1. Rather, Fernandez’ counsel informed him
that he would qualify for such a reduction upon pleading guilty; counsel did not
guarantee that Fernandez would definitely receive the reduction. This advice
is not so deficient to fall below an objective standard of reasonableness. See
Strickland v. Washington, 466 U.S. 668, 689-91 (1984). Additionally, Fernandez
was informed of the maximum possible penalties at his rearraignment hearing,
and he indicated an understanding. He informed the court that he understood
the terms of the plea agreement and that no other promises had been made.
Therefore, he fails to show that counsel was ineffective in advising him that he
would qualify for a reduction under § 3E1.1 by pleading guilty.
      To the extent that Fernandez contends the Government breached the plea
agreement and made “unfulfillable” promises, thereby rendering his guilty plea
involuntary, his challenge is outside the scope of the grant of the COA. See
Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
      AFFIRMED.




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