                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                 Argued January 24, 2017
                                  Decided May 8, 2017

                                          Before

                       WILLIAM J. BAUER, Circuit Judge

                       FRANK H. EASTERBROOK, Circuit Judge

                       MICHAEL S. KANNE, Circuit Judge


No. 16-1547

MAGIN E. VILLASENOR,                             Appeal from the United States
    Petitioner-Appellant,                        District Court for the Northern District
                                                 of Illinois, Eastern Division.
       v.
                                                 No. 16 cv 148
UNITED STATES OF AMERICA,
     Respondent-Appellee.                        Joan B. Gottschall,
                                                 Judge.

                                        ORDER

       After a jury trial in 2006, Magin Villasenor was convicted of crimes arising from a
conspiracy to distribute cocaine and marijuana. He was sentenced to a total of 300
months’ imprisonment, and we affirmed his convictions on direct appeal. United States v.
Villasenor, 664 F.3d 673 (7th Cir. 2011). Then in 2013 he filed a collateral attack under 28
U.S.C. § 2255, claiming that trial counsel rendered constitutionally ineffective assistance
during unfruitful plea negotiations. The district court rejected that claim after an
evidentiary hearing but authorized Villasenor to pursue this appeal. We conclude that
Villasenor never established prejudice resulting from counsel’s performance, and on that
basis we affirm the judgment.
No. 16-1547                                                                         Page 2

        Villasenor had been charged with conspiring to distribute cocaine and marijuana,
21 U.S.C. §§ 846, 841(a)(1); distributing cocaine, id. § 841(a)(1); using a telephone to
commit a felony drug crime, id. § 843(b); and possessing a firearm after a felony
conviction, 18 U.S.C. § 922(g)(1). Before trial he rejected a plea offer from the
government, then entered but withdrew a plea of guilty to the conspiracy count, and,
finally, received but rejected again the same plea offer as before. The jury found him
guilty on 16 counts, including the conspiracy. In his § 2255 motion Villasenor alleged
that he rejected the government’s favorable plea offers because trial counsel,
Joseph Lopez, convinced him that rolling the dice was better than accepting the first
offer and then lying to him about the terms of the second offer.

        At an evidentiary hearing on Villasenor’s motion, the government introduced
evidence that he participated in a “proffer” session with investigators soon after he was
indicted in July 2003. That was a first step toward a possible plea agreement calling for
cooperation, but Villasenor lied during the session, so the government ended it. Still, the
assistant United States attorney, Joseph Alesia, wasn’t ready to give up. He concluded
that Villasenor was responsible for roughly 600 kilograms of cocaine and, in the absence
of a recidivism enhancement, see 21 U.S.C. §§ 841(b)(1)(A)(ii), 851, faced a likely
imprisonment range of 292 to 365 months under the sentencing guidelines. AUSA Alesia
went to his supervisors in March 2004 and obtained approval to offer a deal: If Villasenor
cooperated and could establish that the conduct underlying his earlier drug convictions
was part of the charged conspiracy, then the government would agree that those
convictions shouldn’t incur criminal history points, thus lowering his projected criminal
history category and making the imprisonment range 210 to 262 months. This
anticipated deal would include the government’s promises to forego a recidivism
enhancement (which, if the government was correct about the cocaine quantity, would
mandate a life sentence based on two prior drug convictions) and move under U.S.S.G.
§ 5K1.1 for a sentence reduction up to 25% of the imprisonment range. In theory, then,
Villasenor’s sentence could be as low as 158 months.

       Through attorney Lopez, the government proposed this deal to Villasenor. Lopez
met with Villasenor to discuss the government’s offer, but at the evidentiary hearing
they gave conflicting accounts about what Lopez said. Villasenor testified that Lopez
characterized the government’s evidence as “weak” and recommended that he reject the
plea offer, so he did. In contrast, Lopez testified that they discussed the possibility of
cooperation given the government’s guidelines calculations and the prospect that a
recidivism enhancement would be filed if Villasenor didn’t cooperate. According to
Lopez, Villasenor did not want to cooperate, though the lawyer denied recommending
No. 16-1547                                                                         Page 3

against cooperating. He also denied calling the government’s case “weak,” yet Lopez
admitted telling Villasenor he “had a very good chance” of winning the conspiracy
count because, as Lopez saw things, the evidence would establish multiple buyer-seller
relationships, not an overarching agreement. During his testimony Lopez also called
into doubt whether he had given Villasenor sound advice concerning the provable drug
quantity: 5 kilograms of cocaine (the amount alleged in the conspiracy count) would
have triggered a 10-year minimum without a recidivism enhancement, see 21 U.S.C.
§ 841(b)(1)(A)(ii), and after first saying he hadn’t believed “the government could prove
more than five kilos,” Lopez was questioned about the sizeable amounts seized during
the investigation and then said he’d told Villasenor that the government might be able to
prove more than 5 kilograms. Still, Lopez maintained that on “numerous occasions” he
and Villasenor had discussed options, including cooperation.

       What’s clear is that Lopez eventually wrote AUSA Alesia saying Villasenor
wanted a jury trial. Then, more than a month later, Lopez asked Alesia to draft a plea
agreement without a cooperation term or a stipulation to drug quantity. On June 18,
2004, Alesia instead responded with a formal, written proposal that did specify a drug
quantity. The AUSA’s transmittal letter explained that he’d included a stipulation to
more than 150 kilograms of cocaine because that amount, which would yield an
imprisonment range of 292 to 365 months, was “easily proven.” Alesia’s letter also
warned that, if there was a trial, he would pursue a mandatory life sentence by filing the
recidivism enhancement.

        In addition, the letter from AUSA Alesia renewed the government’s March 2004
proposal. Villasenor would be required to cooperate against the remaining defendants
and could benefit from fewer criminal history points if his information allowed the
government to confirm that his prior drug crimes were part of the charged conspiracy.
The government also would consider a “small percentage” reduction from the
guidelines range and recommend that Villasenor’s wife receive pretrial diversion
instead of prison time for her role in the conspiracy. Lopez admittedly withheld this
letter from Villasenor but, at the evidentiary hearing, insisted he had told the defendant
about the letter as well as the formal, written plea offer. Lopez testified that Villasenor
rejected the plea agreement because he “[d]idn’t agree with the guideline calculations,
and neither did I.” In contrast, Villasenor testified that Lopez disclosed only the formal,
written offer; he wasn’t told that the government’s March offer was back on the table,
and had he known, he would have accepted it.
No. 16-1547                                                                        Page 4

       Villasenor was unwilling to stipulate to 150 kilograms of cocaine, so Lopez then
recommended that he plead guilty just to the conspiracy count. At the evidentiary
hearing on Villasenor’s § 2255 motion, Lopez testified that he had recommended this
course of action as a way of preserving a challenge to the guidelines calculations and
avoiding a recidivism enhancement. But the parties had not agreed to anything in
writing (even if Villasenor assumed that the remaining counts would be dismissed), and
on the morning of the change-of-plea hearing, the government filed an enhancement
information (listing just one prior drug felony) that doubled the statutory minimum
from 10 years to 20 (assuming a drug quantity of 5 or more kilograms of cocaine). See 21
U.S.C. §§ 841(b)(1)(A)(ii), 851. Villasenor nevertheless went forward with his guilty plea
on July 1, 2014.

       As it happened, though, Villasenor never was sentenced on that guilty plea.
Instead, four weeks later, relying on Blakely v. Washington, 542 U.S. 296 (2004), he moved
to withdraw his plea. Villasenor asserted that he had not appreciated the ramifications of
Blakely and had been caught off guard by the government’s last-minute enhancement
information. The district court allowed Villasenor to withdraw his guilty plea in January
2015 after the release of Booker v. United States, 543 U.S. 220 (2005).

       Meanwhile, with Villasenor’s motion to withdraw his guilty plea still pending,
AUSA Alesia wrote Lopez on September 29, 2004, to memorialize an earlier phone
conversation. He stated that Villasenor still could proffer and cooperate. Alesia
reiterated the government’s stance that Villasenor’s criminal history category would
drop significantly if, with Villasenor’s help, the government could verify that the
conduct underlying his earlier convictions actually was part of the charged conspiracy.
Alesia also stated that the government would consider withdrawing the enhancement
information. At the evidentiary hearing Lopez testified—but Villasenor denied—that
they had discussed this renewed option of cooperating. In fact, on the very day he
received the AUSA’s offer, Lopez wrote Villasenor falsely asserting that Alesia had
“assured me that under no circumstances” would the enhancement information be
withdrawn “even if the Judge vacates your plea.” Lopez testified that he wrote this letter
on the assumption that Villasenor would not want to cooperate. That assumption
doesn’t explain his lie but, as it turns out, Lopez may have guessed correctly: At the
evidentiary hearing Villasenor never said he would have accepted Alesia’s latest offer if
it had been conveyed to him by Lopez.

    In denying the § 2255 motion, the district court found that Lopez had
communicated the contents of Alesia’s June 18, 2004, letter to Villasenor, including the
No. 16-1547                                                                           Page 5

section about potential cooperation. But “Villasenor still did not want to cooperate,” the
court said, despite being told by Lopez of the potential benefits of cooperation, including
the possibility that the government would forego filing a recidivism enhancement and
the possibility of pretrial diversion for his wife. The court also found that Lopez’s advice
concerning the strength of the government’s case, though contradictory and
inconsistent, was not constitutionally deficient because Villasenor had been “adamant in
his refusal to cooperate” and because Lopez had given Villasenor a mix of positive and
negative advice concerning his case.

       To have prevailed on his claim that Lopez was constitutionally ineffective,
Villasenor needed to show that Lopez’s performance fell below an objective standard of
reasonableness and that he was prejudiced as a result. See Strickland v. Washington, 466
U.S. 668, 687–88, 693 (1984); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009). On
appeal, Villasenor presses his theory that Lopez gave deficient advice in connection with
the government’s plea offers in AUSA Alesia’s letter of June 18, 2004. Essentially,
Villasenor contends that Lopez gave him bad advice about whether to accept one of
those offers and, in fact, failed even to disclose that Alesia had proposed more than one
alternative.

        We need not address Villasenor’s argument that Lopez’s performance was
deficient, however, because he lacks evidence of prejudice from the events in June 2004.
See McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017). Villasenor first maintains that he
was prejudiced because Lopez’s advice led him in July 2004 to enter a guilty plea to the
conspiracy charge. But he was allowed to withdraw that plea and proceed to trial,
erasing any prejudice that would have been caused by Lopez’s deficient advice to enter
the plea in lieu of accepting the government’s June 2004 plea offers. See United States v.
Hernandez, 948 F.2d 316, 319 (7th Cir. 1991) (noting that petitioner who withdrew guilty
plea could not claim prejudice from that plea). Villasenor asserts, though, that he was
still prejudiced because the government had filed an enhancement information and, he
insists, his only remaining option after withdrawing his guilty plea was to proceed to
trial in the face of overwhelming evidence against him. Yet this argument ignores that
the government’s plea offer remained on the table: In September 2004, AUSA Alesia
offered Villasenor the same deal previously made available in his June 18, 2004,
correspondence and offered to withdraw the enhancement information. And despite his
awareness of the enhancement information and the government’s evidence against him,
Villasenor did not accept this offer.
No. 16-1547                                                                      Page 6

        True, at the evidentiary hearing on his § 2255 motion, Villasenor asserted that
Lopez had not told him about the September 2004 offer, but in this court he abandons
that contention. Thus, for purposes of this appeal, Villasenor does not contest that the
same terms were conveyed to him after it became increasingly likely that the district
court would allow him to withdraw his guilty plea. See Estremera v. United States, 724
F.3d 773, 779 (7th Cir. 2013) (offering defendant same plea agreement that was available
earlier is possible remedy for claim of ineffective assistance of counsel during plea
negotiations). Moreover, at the evidentiary hearing Villasenor never contradicted
Lopez’s testimony that he would have been uninterested in the renewal of the June offer,
which included cooperation as one of the terms. All of this dooms his claim that he was
prejudiced by the events in June.

                                                                           AFFIRMED.
