             Case: 12-15717    Date Filed: 07/11/2013   Page: 1 of 24


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15717
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:11-cv-21168-MGC,
                            1:07-cr-20487-MGC-1


ANGEL BALBUENA,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

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

                                  (July 11, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Angel Balbuena, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. After review,
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we affirm.

               I. UNDERLYING CRIMINAL PROCEEDINGS

A.    Indictment & October 2007 Change-of-Plea Hearing

      In June 2007, Balbuena, a Cuban national, was indicted for: (1) attempting

to possess 13 kilograms of cocaine with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 1); (2) possession of more than 500

grams of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 846 (Count 2); and (3) possession of marijuana with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count 3).

      Assistant Federal Public Defender Vincent Farina was appointed to represent

Balbuena. Following his initial appearance, Balbuena was released on bond.

When Balbuena failed to appear for a scheduled change-of-plea hearing in October

2007, the district court issued a bench warrant for his arrest. In March 2008,

Balbuena was located and remanded to the custody of the U.S. Marshals Service.

B.    May 2008 Change-of-Plea Hearing

      A rescheduled change-of-plea hearing was held in May 2008. At the start of

the hearing, the district court asked the parties whether they were ready to proceed.

Attorney Farina responded “not today,” and indicated that there was some

uncertainty about whether the government was planning to charge Balbuena for




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bail jumping, and whether that charge would be filed in a superseding or separate

indictment.

      The government admitted that a final decision had not been made regarding

whether to charge Balbuena with bail jumping. But, the government noted that

regardless of what the ultimate decision turned out to be, Balbuena could

nevertheless choose to plead guilty in full to the current indictment.

       Farina requested an opportunity to speak with Balbuena, which the district

court granted. After consulting with Balbuena, Farina informed the district court

that Balbuena was prepared to move forward with his guilty plea.

      The district court, through a Spanish interpreter, placed Balbuena under oath

and warned Balbuena that he was subject to perjury charges for lying. The district

court inquired whether Balbuena was a U.S. citizen, and Balbuena admitted that he

was a Cuban citizen. Balbuena stated that he had discussed the case with his

attorney and was satisfied with his attorney’s representation. Balbuena affirmed

that he understood the charges against him, and that no one was threatening him or

forcing him to plead guilty.

      The government proffered that the evidence at trial would show that an

undercover Drug Enforcement Administration (“DEA”) agent (later identified as

Jalisa Monzon) and a separate confidential informant (“CI”) placed several

recorded phone calls to Balbuena. In these calls, Balbuena (1) told the CI that he


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had gathered enough money to purchase over 10 kilograms of cocaine, and (2) set

up a meeting with the CI for the purpose of consummating a cocaine sale.

      On June 6, 2007, Balbuena met the CI and undercover DEA Agent Monzon

in a parking lot. Balbuena told the CI that he had brought $100,000 with him and

that the rest of the money was at Balbuena’s home. Balbuena asked to see the

cocaine. The CI and Agent Monzon showed Balbuena a large duffel bag that

contained 13 brick-shaped objects wrapped in duct tape, intended to simulate

kilograms of cocaine. Balbuena was then arrested.

      The district court asked Balbuena whether he agreed with the government’s

proffer. Balbuena responded “[w]ell, there is one thing there that I did not do.”

The following discussion then occurred about the quantity of cocaine at issue in

Count 1, but Balbuena ultimately agreed to the government’s proffer, as follows:

      THE COURT:          What is that, sir?

      [FARINA]:           Your Honor, I am concerned about the quantity of drugs
                          that was actually negotiated. It was three kilos instead of
                          ten. The agents told them they had ten kilos if he wanted
                          to buy them. He only brought in three. That is a
                          discrepancy in the quantity.

      [GOVERNMENT]:. . . I can change the proffer to over five kilograms of
                  cocaine. Anything beyond that, I don’t believe is a
                  proffer that complies with what is charged in the
                  indictment

      THE COURT:          That’s what he is charged with in Count 2.

      [FARINA]:           May I have one moment, Your Honor?
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      THE COURT:          Yes.

      [FARINA]:           May I have one moment with the interpreter,
                          Judge?

      THE COURT:          You may.

      [FARINA]:           We are prepared to go forward, Your Honor.
                          Thank you.

      THE COURT:          Sir, do you accept the factual basis as read by the
                          prosecutor?

      [BALBUENA]:         Yes.

      After Balbuena explicitly agreed with the government’s factual proffer, the

district court found that Balbuena (1) was “fully competent and capable of entering

an informed plea” and (2) was “aware of the nature of the charges and the

consequences of the plea.” The district court further found that Balbuena’s “plea

of guilty [was] knowing and voluntary, supported by an independent basis in fact

containing each of the essential elements of the offense.” The district court

accepted Balbuena’s guilty plea and adjudicated him guilty of Counts 1, 2, and 3.

C.    Balbuena’s Presentence Investigation Report

      After Balbuena pled guilty, a U.S. probation officer prepared a presentence

investigation report (“PSI”). Balbuena provided to the probation officer a

typewritten statement, in which he said that he

      met with a confidential informant and an undercover officer to
      conduct a purported sale of 13 kilograms of cocaine. Previously I had
      negotiated the price of $17,500.00 per kilogram. Another individual
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      that I was working with by the name of Carlos Luna was going to
      purchase 10 of the kilos and I was going to purchase 3. . . . I met with
      [the CI and the undercover DEA Agent]. I told them that Carlos had
      the rest of the money with him at my house.

      Farina filed written objections to the PSI, including an objection to the 13

kilograms of cocaine for which the PSI held Balbuena accountable. Specifically,

Farina argued that while there was discussion between Balbuena and the CI of a

quantity of cocaine in excess of 10 kilograms, (1) that discussion was crafted and

supported by the CI; and (2) Balbuena had really wanted to purchase only 3

kilograms of cocaine, as evidenced by the amount of money he brought to the

meeting with the CI.

D.    Farina’s Withdrawal

      Less than a week after Farina filed objections to the PSI, Balbuena sent a pro

se letter, written in Spanish, to the district court. In this letter, Balbuena stated

that he had been poorly represented by Farina, did not receive sufficient advice

from Farina, and wished to withdraw his plea of guilty to the offense of possessing

13 kilograms of cocaine, which he denied committing.

      In July 2008, the district court held a hearing about Balbuena’s

dissatisfaction with Farina and his desire to withdraw his guilty plea. At the

hearing, Farina made an oral motion to withdraw and conceded that he should have

moved to withdraw several months earlier when a potential attorney-client conflict

arose at Balbuena’s May 2008 change-of-plea hearing. Specifically, this
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prospective conflict arose out of Farina’s being a potential grand jury witness in

the event that the government sought to indict Balbuena for bail jumping. Farina

explained that as Balbuena’s attorney, he could be called to testify that he had

affirmatively advised Balbuena about Balbuena’s obligation to appear for the

change-of-plea hearing.

      Farina reminded the district court that at the beginning of the May 2008

change-of-plea hearing, Farina had asked the district court for a few minutes to

speak with Balbuena about the possibility of the government filing a separate or

superseding indictment that contained a bail jumping charge. The district court

granted Farina’s request, and Farina had consulted with Balbuena for several

minutes. After this consultation, Farina told the district court that Balbuena was

ready to plead, and the change-of-plea hearing continued. Farina told the district

court that during his consultation with Balbuena, he thought that “under the

circumstances [Balbuena] felt a little bit rushed and pressured and he did go

through the plea colloquy.”

      In response to Farina’s admissions, the district court observed that Balbuena,

as early as October 2007 (when the first change-of-plea hearing was scheduled),

was prepared to change his plea to guilty. The district court noted Balbuena “was

supposed to plead guilty on the day that he didn’t show up. It’s not like you

[Farina] rushed him into taking a plea” in May 2008.


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      The government and Farina observed that the matter of an attorney-client

conflict went beyond the prospect of Farina becoming a government witness

against his own client, in that Balbuena also had sent the district court the pro se

letter expressing his dissatisfaction with Farina and his desire to withdraw his

guilty plea. The district court granted Farina’s motion to withdraw and appointed

Balbuena new counsel.

E.    Motion to Withdraw Guilty Plea

      Through his newly appointed counsel, Israel Jose Encinosa, Balbuena filed a

motion to withdraw his guilty plea because it was not knowingly and voluntarily

entered. Balbuena’s motion asserted, inter alia, that he did not receive close

assistance of counsel because the recorded conversations between Balbuena and

the CI were not translated from Spanish to English or transcribed. Farina was not

fluent in Spanish. Balbuena argued that Farina’s lack of Spanish fluency was

problematic because Balbuena had actually said that he only had money for 3

kilograms of cocaine, rather than 13 kilograms, in one of the last recorded

conversations with the CI.

      Following the government’s response, the district court held a hearing in

August 2008 on Balbuena’s motion to withdraw his guilty plea. At this hearing,

Attorney Encinosa again emphasized that Balbuena brought only enough money to

the meeting with the CI and undercover DEA Agent Monzon to purchase 3


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kilograms of cocaine. With regard to the recorded conversations between

Balbuena and the CI, Balbuena’s counsel noted that the Spanish words for “three”

and “thirteen” sounded similar. 1 The district court questioned Encinosa about

Balbuena’s explicit agreement with the government’s factual proffer at the change-

of-plea hearing, which agreement Balbuena made after conferring with Farina and

an interpreter. Encinosa responded, “Judge, that is what it is. . . . But you are

correct. All that happened during the plea colloquy I am sure.”

       The district court orally denied Balbuena’s motion to withdraw his guilty

plea because Balbuena (1) was in the best position to advise Farina about the

content of the recorded phone conversations, and plainly had advised Farina well

enough for Farina to raise a specific objection to drug quantity at the change-of-

plea hearing; (2) was granted several opportunities during the change-of-plea

hearing to confer with Farina and the interpreter whenever he had questions; and

(3) stated that he agreed with the factual proffer, he was pleading guilty because it

was in his best interest, and he was satisfied with Farina’s representation.

F.     Sentencing Hearing

       At Balbuena’s sentencing hearing in October 2008, undercover DEA Agent

Monzon testified that she was fluent in Spanish and was responsible for creating
       1
        The government explained that the recorded conversations between Balbuena and the CI
were not transcribed or translated into English at the time of the change-of-plea hearing because
the “case was tracking towards a guilty plea.” As discussed further infra, the conversations were
ultimately transcribed and translated into English because the English-language transcripts were
introduced at Balbuena’s sentencing hearing.
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the English transcripts of the recorded phone conversations between Balbuena and

the CI. Agent Monzon described the phone conversations, which were

negotiations for Balbuena to purchase between 13 and 15 kilograms of cocaine at a

price of $17,500 per kilogram, and the government introduced into evidence

transcripts and audio recordings of these conversations. In the final phone

conversation between Balbuena and the CI, Balbuena stated that he had money for

“13” and the CI responded “For 13, for 13. Perfect. It’s what I have on me. You

told me that and I got it.” When Balbuena arrived to consummate the sale,

however, he stated that he only had $100,000 in cash on him, and that the money

for the remainder of the cocaine was stored at his home. After arresting Balbuena,

law enforcement officers counted the money Balbuena had brought to the

transaction and determined that it was only approximately $54,000, not $100,000.

      On cross-examination, Agent Monzon conceded that Balbuena did not speak

“proper Castillian Spanish.” However, she disagreed that the Spanish word for

“three” could be mispronounced and interpreted as the Spanish word for “thirteen.”

Further, she was certain Balbuena had ultimately asked for 13 kilograms of cocaine

in the last conversation with the CI, but conceded that Balbuena had requested

different amounts from conversation to conversation.

      Balbuena testified that he decided to tell the purported seller that he had the

money to buy the quantity the seller had available, but he always intended to


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purchase only 3 kilograms. Balbuena stated that the seller would not agree to sell

the smaller amount, however. On cross-examination, Balbuena denied that he

intended to purchase cocaine for someone else. Balbuena admitted that in the

debriefing he told a case agent that he did intend to bring some of the cocaine to

someone named “Luna.” Balbuena explained that he had lied to the agent in an

attempt to lessen his sentence. On re-direct, Balbuena again testified that the seller

never agreed to sell less than 10 kilograms, and Balbuena agreed to the seller’s

proposal even though he wanted to purchase a lesser amount.

      The district court found that the government had proved, by a preponderance

of the evidence, that Balbuena was accountable for 13.785 kilograms of cocaine, as

stated in the PSI. Balbuena’s objection to the drug quantity was thus overruled.

      Balbuena then argued that relying on his bail jumping for both enhancement

for obstruction of justice and denial of acceptance of responsibility was

impermissible double counting. Balbuena noted that he potentially faced

additional charges for the bail jumping. The district court implicitly ruled that

there was no impermissible double counting regarding the obstruction

enhancement coupled with the denial of a reduction for acceptance of

responsibility, and explicitly ruled that the potential for future charges was not

double counting.




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       The district court then stated that it had considered the 18 U.S.C. § 3553(a)

sentencing factors, which included an advisory guidelines range of 168 to 210

months’ imprisonment. The district court sentenced Balbuena to 170 months’

imprisonment on Counts 1 and 2 and 60 months on Count 3, with the sentences to

run concurrently. In explaining its reasons for the sentence imposed, the district

court noted Balbuena’s bail jumping, his inability to give “a consistent version of

the events that comports with anybody else’s reality” or accept responsibility for

his offenses, and that “the guideline range in this case adequately reflects the

factors in [§] 3553.”

G.     Direct Appeal

       Balbuena timely appealed his convictions and sentences to this Court. On

appeal, Balbuena argued, inter alia, that the district court erred in denying his

motion to withdraw his guilty plea because his original counsel, Farina, did not

know the contents of the recorded phone conversations between Balbuena and the

CI. 2 This Court affirmed Balbuena’s convictions and sentences. See United States

v. Balbuena, 343 F. App’x 510 (11th Cir. 2009), cert. denied, 130 S. Ct. 2341

(2010). In addressing Balbuena’s argument that he should have been permitted to

withdraw his guilty plea, this Court stated the following:
       2
         In his direct appeal, Balbuena also raised arguments concerning (1) the district court’s
failure to advise him of the statutory mandatory minimum penalties during his change-of-plea
hearing; and (2) whether the district court erred by both increasing his offense level for
obstruction of justice and denying him an acceptance-of-responsibility reduction based on his
bail jumping. United States v. Balbuena, 343 F. App’x 510, 515–17 (11th Cir. 2009).
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      After the district court has accepted a plea and before sentencing, a
      defendant may withdraw a guilty plea if “the defendant can show a
      fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.
      11(d)(2)(B). When deciding whether a defendant has shown a fair
      and just reason for withdrawal, the district court evaluates the totality
      of the circumstances, including: “(1) whether close assistance of
      counsel was available; (2) whether the plea was knowing and
      voluntary; (3) whether judicial resources would be conserved; and (4)
      whether the government would be prejudiced if the defendant were
      allowed to withdraw his plea.” United States v. Buckles, 843 F.2d
      469, 471–72 (11th Cir. 1988) (citations omitted).
      ....
             As to whether Balbuena received close assistance of counsel,
      Balbuena consulted with his counsel through an interpreter at the plea
      hearing after Balbuena questioned the drug quantity in the
      government’s factual proffer.        As a party to the recorded
      conversations, Balbuena himself could have advised his counsel
      regarding the substance of the conversations with the CI and told his
      counsel that he would not admit that he agreed to purchase 13
      kilograms of cocaine. Instead, after consulting with counsel,
      Balbuena stated that he accepted the government’s factual proffer,
      which expressly referenced 13 kilograms of cocaine, and pled guilty.
      Balbuena also told the district court that he was satisfied with his
      lawyer’s representation. The district court was permitted to rely on
      Balbuena’s representations at the plea hearing. See United States v.
      Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong
      presumption that the statements made during the [plea] colloquy are
      true.”).

              As to whether Balbuena’s plea was knowing and voluntary,
      Balbuena stated that he understood the charges against him and the
      rights he was waiving, that he was not being pressured to plead guilty,
      and that he accepted the government’s factual basis. Because these
      first two factors weigh strongly in favor of the district court’s decision
      not to allow Balbuena to withdraw his plea, we conclude that the
      district court did not err and need not consider the other two factors.

Balbuena, 343 F. App’x at 516.



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                           II. SECTION 2255 MOTION

      In April 2011, Balbuena filed a pro se § 2255 motion to vacate his sentence.

In this motion, Balbuena alleged five grounds for relief, including that his counsel

rendered ineffective assistance by (1) failing to ensure that Balbuena understood

the nature and consequences of his guilty plea; and (2) failing to argue at

sentencing that Balbuena merited a downward variance based on the more onerous

conditions that aliens face in federal prison compared to United States citizens.

      As to his ineffective-assistance claim regarding his guilty plea, Balbuena

argued that his guilty plea was unknowing and involuntary because Attorney

Farina failed to inform him of the elements of the offense, explain how his conduct

satisfied the elements, or explain any of the constitutional rights that would be

waived by a guilty plea. Balbuena further argued that because of Farina’s lack of

Spanish-language ability, Farina had (1) failed to investigate the case adequately,

and (2) “gravely misled [Balbuena] about the nature of the charges he faced,”

presumably by telling him he would plead guilty to 3 kilograms when he was

actually pleading guilty to 13 kilograms. Balbuena asserted that he suffered

prejudice as a result of Farina’s ineffective assistance because, had Farina

explained the elements of the offense, the law in relation to the facts of his case, or

the waived constitutional rights, Balbuena would not have pleaded guilty.




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      As to his ineffective-assistance claim regarding his sentence, Balbuena

argued that Attorney Encinosa was ineffective at sentencing for failing to argue

that he merited a downward variance on the basis that aliens faced certain federal

prison conditions that United States citizens did not face. These conditions

included (1) the inability to participate in a substance abuse program, thereby

missing out on a potential sentence reduction; (2) the inability to receive a

halfway-house placement; and (3) placement in a higher-security prison. Balbuena

argued that he suffered prejudice from Encinosa’s deficient performance because

he would have received a lower sentence had Encinosa raised the issue before the

district court at sentencing.

      Balbuena’s § 2255 motion was referred to a magistrate judge. Following the

government’s response, the magistrate judge issued a report recommending denial

of Balbuena’s motion in full. In relevant part, the magistrate judge first determined

that Balbuena’s ineffective-assistance-of-counsel claim based on Farina’s guilty

plea advice was “clearly without merit,” as the record did not show that if

Balbuena had been advised differently, he would have proceeded to trial rather

than pleading guilty.

      The magistrate judge found, based on the transcript of the plea colloquy, that

Balbuena’s guilty plea was knowing and voluntary, and that Balbuena had “full

knowledge of the elements of the offense to which he was pleading guilty, and of


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the evidence proffered by the government which it was prepared to prove” if

Balbuena chose to proceed to trial. Balbuena’s “bare allegation[s]” to the contrary

were “wholly incredible” in light of the record, which demonstrated that he

consulted with Farina and made “solemn declarations in open court” that his plea

was knowing and voluntary. The magistrate judge also found that Farina had not

provided ineffective assistance in advising Balbuena about the consequences of his

guilty plea, noting that, had Balbuena proceeded to trial, he risked receiving a

longer sentence, as compared to the low-end guidelines range sentence the district

court imposed after Balbuena’s guilty plea.

      The magistrate judge then considered Balbuena’s ineffective-assistance

claim based on Encinosa’s failure to argue for a variance based on Balbuena’s

status as an alien. Construing Balbuena’s pro se § 2255 motion in literal terms as

arguing that Encinosa was ineffective for failing to request a below-guideline

sentence on the basis of Balbuena’s status as an alien, the magistrate judge found

no ineffectiveness because the sentencing court had indicated that a within-

guideline sentence was necessary, and thus “would not have been disposed to

depart downward and impose a below-the-guidelines sentence.” The magistrate

judge also noted that this Court has held that a defendant’s status as an alien

generally will not support a sentence reduction, and, therefore, Encinosa’s decision

to forego the argument at sentencing was “clearly a strategic decision of the kind


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for which counsel cannot under the circumstances be deemed ineffective.” The

magistrate judge thus recommended that the district court deny Balbuena’s § 2255

motion to vacate as to these claims.

      Balbuena filed objections to the report, asserting that the Spanish-language

letter he sent to the district court, in which he asked to withdraw his plea because

of his dissatisfaction with Farina’s representation, constituted evidence of a

breakdown in communication between Farina and him and demonstrated that he

would have proceeded to trial had Farina properly represented him. In addition,

Balbuena noted that he maintained throughout the underlying criminal proceedings

that he intended to purchase only 3 kilograms of cocaine, another indicator that

Farina provided ineffective assistance. Balbuena also objected to the magistrate

judge’s recommendation that Encinosa was not ineffective for failing to raise the

issue of Balbuena’s alien status at sentencing, asserting generally that Encinosa

had an obligation to do so.

      After considering Balbuena’s objections and conducting a de novo review of

the record, the district court adopted the magistrate judge’s report and denied

Balbuena’s § 2255 motion to vacate. The district court granted Balbuena a

certificate of appealability as to his two ineffective-assistance claims discussed

above.




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                                III. DISCUSSION

      In a § 2255 proceeding, we review a district court’s legal conclusions de

novo and its factual findings for clear error. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008).

A.    Ineffective Assistance of Counsel: Guilty Plea

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984).

      Under the first prong, the defendant must establish that counsel’s

performance was deficient by demonstrating by a preponderance of the evidence

“that particular and identified acts or omissions of counsel were outside the wide

range of professionally competent assistance.” Chandler v. United States, 218 F.3d

1305, 1313–14 (11th Cir. 2000) (en banc) (citation and internal quotation marks

omitted). In deciding whether counsel’s performance was deficient, our judicial

scrutiny is “highly deferential” and requires us to “indulge [the] strong

presumption that counsel’s performance was reasonable and that counsel made all

significant decisions in the exercise of reasonable professional judgment.” Id. at

1314 (internal quotation marks omitted). This Court conducts an objective inquiry

into the reasonableness of counsel’s performance, such that a defendant “must


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establish that no competent counsel would have taken the action that his counsel

did take.” Id. at 1315.

      Under the second prong of the Strickland test, “[t]he 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.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. To establish prejudice in the context of a guilty

plea, the defendant must show that “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, 106 S. Ct. 366, 370 (1985).

      Here, the magistrate judge did not err in finding that Balbuena had failed to

show that Farina’s performance was constitutionally deficient. At Balbuena’s May

2008 change-of-plea hearing, Balbuena affirmed that his plea was knowing and

voluntary, that he was satisfied with Farina’s representation, and that he

understood the charges against him. In light of these statements, and other

evidence of record that we discuss below, Balbuena’s claim that his plea was

unknowing and involuntary due to Farina’s alleged misadvice fails for two reasons.

      First, at the change-of-plea hearing, the government’s factual proffer clearly

stated that the amount of cocaine at issue in Count 1 was more than 10 kilograms.

When Balbuena personally raised a general objection to the proffer, Farina then


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stepped in and specifically objected to the cocaine quantity, contending that it

should be 3 kilograms instead of 13. Farina stated “Your Honor, I am concerned

about the quantity of drugs that was actually negotiated. It was three kilos instead

of ten. The agents told them they had ten kilos if he wanted to buy them. He only

brought in three. That is a discrepancy in the quantity.” In addition, after

Balbuena’s conference with Farina and the interpreter during the change-of-plea

hearing, and without any change in the government’s proffer (a proffer to which

Balbuena himself, rather than his counsel, had raised the initial objection),

Balbuena explicitly agreed to proceed with his guilty plea as to Count 1.

Balbuena’s and Farina’s separate objections, and Farina’s subsequent discussion

with Balbuena, indicate that Farina was aware of the issue regarding the amount of

cocaine. Thus, the record refutes Balbuena’s assertion that because of Farina’s

performance, Balbuena did not know he was pleading guilty to attempting to

possess 13 kilograms, instead of 3 kilograms, of cocaine.

      Second, even if we credit Balbuena’s claim about Farina’s lack of Spanish-

language abilities, the change-of-plea hearing transcript indicates that Farina asked

for an interpreter and conferred with Balbuena during the hearing while

accompanied by that interpreter. Farina’s lack of Spanish-language ability,

therefore, would not have impeded his ability to communicate the elements of the

offense to Balbuena. Any failure on the part of the interpreter that led to Balbuena


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misunderstanding the amount of cocaine at issue has no bearing on the question of

whether “no competent counsel would have taken the action that [Farina] did.”

Chandler, 218 F.3d at 1315.

      While Farina may have withdrawn in part because of Balbuena’s allegations

of ineffective assistance and acknowledged that Balbuena might have felt “rushed

and pressured” to enter his guilty plea, it is Balbuena who carries the burden of

showing Farina’s deficient performance under an objective standard, which he

failed to do. See Chandler, 218 F.3d at 1315. Accordingly, the district court did

not err in concluding that Balbuena failed to establish that Farina rendered

deficient performance in advising Balbuena concerning the Count 1 offense to

which Balbuena pleaded guilty. In light of our conclusion that Balbuena has not

shown that Farina performed deficiently, we need not consider the prejudice prong

of the Strickland test. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

B.    Ineffective Assistance of Counsel: Sentencing

      At Balbuena’s sentencing hearing, Attorney Encinosa raised several

arguments in favor of a shorter sentence, including that (1) Balbuena’s offense

level should be set by holding him accountable for 3, rather than 13, kilograms of

cocaine, thus resulting in a lower advisory sentencing guidelines range, and (2) by

denying Balbuena an offense level reduction for acceptance of responsibility, and

imposing an increase for obstruction of justice, Balbuena was being punished twice


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for the same bail-jumping conduct. After the district court rejected both of these

arguments and set the advisory guidelines range at 168 to 210 months, Encinosa

asked that the district court impose a sentence at “the bottom of the guidelines,”

and the district court complied with this request by imposing a total 170-month

sentence.

      In announcing its sentencing decision, the district court stressed Balbuena’s

unwillingness to “accept responsibility for what he has done and move on,” and

that the advisory guidelines range “in this case adequately reflect[s] the factors in

[§] 3553.” The district court also noted that in light of the sentencing presentations

by both parties, it “plan[ned] to sentence the defendant within the advisory

guideline range.”

      With this background, we need not address Strickland’s performance prong

because we conclude that Balbuena has not met his burden of demonstrating that

he was prejudiced by Encinosa’s failure to raise the precise variance argument that

Balbuena now advocates. Balbuena makes only a blanket assertion that his

alienage precludes his participation in certain prison programs and therefore results

in his serving a longer and harsher prison sentence. He does not and cannot show

(as required by Strickland) that there is a reasonable probability that, but for

Encinosa’s failure to raise an argument for a variance on this ground, the district

court would actually have imposed a shorter sentence. See Strickland, 466 U.S. at


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694, 104 S. Ct. at 2068 (“A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”).

      In light of the statements made by the district court judge, who presided over

the entirety of the criminal proceedings and was aware of Balbuena’s alienage (as

well as his bail jumping) from the change-of-plea hearing, and considering the

other non-frivolous arguments Encinosa made on Balbuena’s behalf, there is no

indication from the record that the district court was inclined to accept Balbuena’s

proposed argument and vary downward from the advisory guidelines range due to

Balbuena’s alienage issue. Rather, the district court explicitly stated that it found

that the advisory guidelines range “adequately reflect[ed] the factors in [§] 3553”

and expressed its intention to sentence Balbuena within this range. Further, when

explaining its sentencing decision, the district court focused heavily on Balbuena’s

unwillingness to accept responsibility for his offenses, Balbuena’s constantly

changing story, and the fact that Balbuena had failed to appear for his originally

scheduled change-of-plea hearing, factors completely unrelated to Balbuena’s

alienage.

      Thus, Balbuena has not carried his burden of showing prejudice, i.e., that

there is “a reasonable probability that, but for” Encinosa’s failure to argue for an

alienage variance, the district court would have imposed a shorter sentence.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. As noted by the magistrate judge,


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in light of this record, “[i]t is apparent that the argument raised here . . . is one that

would have had little or no chance of success if counsel had raised it by motion or

objection during the penalty phase of Balbuena’s case.” 3

                                     IV. CONCLUSION

       In light of the foregoing, we affirm the district court’s denial of Balbuena’s

§ 2255 motion to vacate his sentence.

       AFFIRMED.




       3
         To the extent that Balbuena raises additional claims and arguments that are outside of
the scope of the certificate of appealability granted by the district court, we decline to expand the
certificate of appealability or consider those claims in this appeal. See Hodges v. Att’y Gen.,
506 F.3d 1337, 1340–41 (11th Cir. 2007) (declining to address issues raised during briefing that
were not included in the certificate of appealability).
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