     Case: 11-60427     Document: 00512026703         Page: 1     Date Filed: 10/19/2012




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

                                                                            FILED
                                                                         October 19, 2012
                                     No. 11-60427
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KEVIN DEWAYNE WILLIAMS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:10-CV-34


Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Kevin Dewayne Williams, federal prisoner # 93929-022, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion challenging his guilty plea
conviction for attempting to commit extortion affecting interstate commerce in
violation of 18 U.S.C. § 1951. A judge of this court granted Williams a certificate
of appealability on the issue whether Williams was entitled to an evidentiary
hearing on his claim that his trial counsel rendered ineffective assistance in



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60427    Document: 00512026703      Page: 2    Date Filed: 10/19/2012

                                  No. 11-60427

informing him prior to his guilty plea that his sentencing guidelines range of
imprisonment would be about 15 to 21 months.
      To establish that his attorney performed ineffectively, Williams must show
both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). To show prejudice in the context of a guilty plea, Williams must
establish 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 (1985). A prisoner’s allegation that he would not have
pleaded guilty must be reasonable. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir.
1994). A failure to establish either deficient performance or prejudice defeats
the claim. Strickland, 466 U.S. at 697.
      The district court should conduct an evidentiary hearing only if the
defendant produces “independent indicia of the likely merit of [his] allegations.”
United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (internal quotation
marks omitted). “Once such independent evidence is presented, ‘[a] motion
brought under . . . § 2255 can be denied without a hearing only if the motion,
files, and records of the case conclusively show that the prisoner is entitled to no
relief.’” United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008). This court
reviews the denial of a § 2255 motion without an evidentiary hearing for abuse
of discretion. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).
      Assuming, arguendo, that trial counsel provided ineffective assistance in
misadvising Williams of his sentencing exposure, the district court correctly
determined that Williams had not demonstrated a reasonable probability that
but for the misadvice, he would have gone to trial. As the district court
explained, the evidence against Williams was strong and his entrapment defense
was not viable. Even if arguably misadvised about his potential sentencing
range, Williams was aware that he faced a potential 20-year sentence and that
the government was requesting sentencing enhancements that would (and did)

                                         2
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                                No. 11-60427

markedly increase his guideline range. Thus informed, Williams opted to plead
guilty, knowing that doing so would give him the benefit of a 2-level reduction
in base offense level and might result in a below-guidelines sentence. Because
the record does not support the defendant’s generalized assertion that his plea
was involuntary, he has not demonstrated that the district court abused its
discretion in denying this claim without conducting an evidentiary hearing. See
United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995); United States v.
Mackay, 339 F. App’x 367, 369 (5th Cir. 2009) (per curiam).
      The judgment of the district court is AFFIRMED.




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