                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 13-3958
                                      ____________

                          UNITED STATES OF AMERICA

                                           v.

                                 CARLOS CEGLEDI,
                                                Appellant
                                   ____________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. No. 1-08-cr-00218-001)
                    District Judge: Honorable Sylvia H. Rambo
                                   ____________

                                Argued April 28, 2015

              Before: FISHER, HARDIMAN and ROTH, Circuit Judges.

                                (Filed: July 21, 2015)

Mary Hancock, Esq.         Argued
Kristin L. Hravnak, Esq. Argued
Adrian N. Roe, Esq.
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, PA 15282
              Counsel for Appellant

Stephen R. Cerutti, II, Esq.    Argued
Christy H. Fawcett, Esq.
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
              Counsel for Appellee
                                      ____________

                                        OPINION*
                                      ____________

HARDIMAN, Circuit Judge.

       Carlos Cegledi appeals the District Court’s order denying his motion under 28

U.S.C. § 2255. We will affirm.

                                             I

       In 2009, Cegledi was tried on drug trafficking charges. During the trial, the

Government relied heavily on the testimony of Antonio Pagan. Pagan admitted that he:

(1) had pleaded guilty to drug charges stemming from an April 2008 arrest; (2) was

cooperating with the Government; and (3) was awaiting sentencing. On cross-

examination, Cegledi’s counsel, Guillermo Bosch, also asked about Pagan’s cooperation

with the Government, and Pagan again testified that he pleaded guilty to drug charges

and was awaiting sentencing.

       In light of Pagan’s cooperation, the District Court provided the following standard

instructions to the jury:

              Now you have heard evidence that Antonio Pagan has an
       arrangement with the Government under which the Government will speak
       on his behalf at his sentencing in exchange for his providing information to
       the Government. Antonio Pagan’s testimony was received in evidence and
       may be considered by you.


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                             2
              The Government is permitted to present the testimony of someone
       who may benefit during the individual sentencing for providing information
       to the Government. But you should consider the testimony of Antonio
       Pagan with great care and caution. In evaluating Antonio Pagan’s
       testimony, you should consider this factor along with the others I have
       called to your attention.

               You may give such testimony such weight as you think it deserves.
       It is for you to determine whether or not Antonio Pagan’s information or
       testimony may have been influenced by his arrangement with the
       Government. You have heard evidence that Antonio Pagan, a witness, was
       previously convicted of a crime punishable by more than one year in jail.
       You may consider this evidence along with other pertinent evidence in
       deciding whether or not you believe Antonio Pagan and how much weight
       to give his testimony.

App. 244. The Government then asked for a sidebar and argued to the Court that, while

Pagan had pleaded guilty, he was not yet convicted. The Court subsequently corrected

itself in front of the jury, stating: “I gave you a charge on impeachment of a witness with

a prior conviction. Antonio Pagan does not have a prior conviction, and that has been

removed from the charge.” App. 268. Attorney Bosch didn’t object to the retraction,

though he did state at sidebar that “I think it has to be said he has pleaded guilty.”

       The jury convicted Cegledi on three of four counts, and the Court sentenced him

to 234 months’ imprisonment. Cegledi appealed, but his conviction and sentence were

affirmed. United States v. Cegledi, 441 F. App’x 870 (3d Cir. 2011). In December 2012,

Cegledi filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28




                                              3
U.S.C. § 2255. The District Court denied that motion and Cegledi’s motion for

reconsideration. Cegledi timely appealed.1

                                              II

       In this appeal, Cegledi argues that his trial counsel, Bosch, provided ineffective

assistance by failing to object to the jury charge retraction and by failing to raise that

issue on direct appeal. The Government responds that Cegledi’s claim is time-barred and

fails on the merits. In assessing ineffective assistance claims, we apply the familiar two-

part cause and prejudice test of Strickland v. Washington, 466 U.S. 668, 688 (1984).

       Our review of the record leads us to conclude that Cegledi was not prejudiced by

counsel’s allegedly deficient performance. In light of that conclusion, we need not

address either the Government’s timeliness argument or the deficiency prong of

Cegledi’s Strickland claim. See id. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim to . . . address both components of the inquiry if the

defendant makes an insufficient showing on one. In particular, a court need not determine

whether counsel’s performance was deficient before examining the prejudice [prong.]”).




       1
        The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231 and 28
U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

      Our review of a § 2255 ruling is plenary with regard to legal conclusions, while
we apply the clearly erroneous standard to factual findings. United States v. Travillion,
759 F.3d 281, 289 (3d Cir. 2014).

                                               4
       In order to show prejudice under Strickland, “the defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” United States v. Bui, 769 F.3d 831, 834–35 (3d

Cir. 2014) (internal quotation marks and citations omitted). The prejudice analysis is

slightly different where the alleged deficient performance results from counsel’s failure

to raise an issue for appellate review: “The test for prejudice under Strickland is not

whether petitioners would likely prevail upon remand, but whether we would have likely

reversed and ordered a remand had the issue been raised on direct appeal.” United States

v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000).

       Cegledi argues that Antonio Pagan was such an important witness that a seemingly

minor distinction like referring to Pagan’s guilty plea rather than conviction is enough to

undermine confidence in the outcome. He also claims that because the retraction came

after the original jury charge, both the original charge about Pagan’s motivation to lie and

Pagan’s testimony about his guilty plea on direct and cross-examination were effectively

nullified.

       “The ultimate issue under [the Strickland prejudice] test reduces to determining

what effect, if any, the erroneous instruction had on the jury’s verdict.” Whitney v. Horn,

280 F.3d 240, 258 (3d Cir. 2002). The Court’s original jury instruction concerning Pagan

was 191 words. The much shorter retraction essentially deleted the last two sentences of

                                              5
the original charge that related to Pagan, thus leaving the bulk of the original instruction

intact. In what remained, the Court explained Pagan’s arrangement with the Government,

warned the jury to use “great care and caution” when considering Pagan’s testimony, and

expressly noted that Pagan’s testimony “may have been influenced by his arrangement

with the Government.” Regardless of whether Pagan was convicted or merely pleaded

guilty and was awaiting sentencing, the jury was well aware that Pagan had an incentive

to testify in a way that was favorable to the prosecution. Cegledi’s insistence that the

word “conviction” was essential and that the Court’s terse retraction vitiated the lengthy

and detailed original instruction is unreasonable. “[J]urors are presumed to follow the

instructions given [to] them by the court.” Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir.

2014). Accordingly, we decline Cegledi’s invitation to assume that the jury considered

only the two-line retraction and disregarded everything else they were told by the Court

about Pagan’s testimony.

       In light of the multiple references to Pagan’s guilty plea during trial and the

District Court’s jury charge explaining his deal with the Government, there is no

reasonable probability that the result would have been different had Bosch objected to the

retraction. Nor is it likely that we would have reversed and remanded if Bosch had raised




                                              6
the argument on appeal. Accordingly, Cegledi suffered no prejudice under Strickland, so

we will affirm the order of the District Court.2




       2
         The Court acknowledges the pro bono counsel provided to Mr. Cegledi in this
appeal by the Duquesne University School of Law Federal Litigation Clinic and thanks
student advocates, Mary Hancock and Kristin L. Hravnak, for their skillful advocacy.
                                              7
