     Case: 12-31005    Document: 00512264664     Page: 1   Date Filed: 06/06/2013




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

                                                                    FILED
                                                                   June 6, 2013

                                  No. 12-31005                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA

                                            Plaintiff - Appellee
v.

DWIGHT ANTHONY REED

                                            Defendant - Appellant



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before SMITH, HAYNES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Following a jury trial, Reed was convicted of multiple counts of trafficking
in counterfeit goods and sentenced to forty-eight months’ imprisonment. Reed
appealed his conviction and sentence but subsequently dismissed the appeal
voluntarily. Reed then filed a motion under 28 U.S.C. § 2255 seeking to vacate
his conviction and sentence on various grounds, including ineffective assistance
of counsel. The district court denied Reed’s motion and denied a certificate of
appealability. On Reed’s motion, this court granted a certificate of appealability
only on the issue of whether the district court erred in denying, without
conducting an evidentiary hearing, Reed’s claim that his trial counsel was
ineffective in failing to properly advise him on the sentence he would have faced
    Case: 12-31005    Document: 00512264664      Page: 2   Date Filed: 06/06/2013



                                 No. 12-31005

had he accepted the government’s plea offer. For the following reasons, we
VACATE the district court’s order with respect to this issue only and REMAND
for an evidentiary hearing.
                               BACKGROUND
      Reed was the owner of a clothing store operating in the Pierre Bossier Mall
in Bossier City, Louisiana. On September 25, 2009, Reed was charged in a
twenty-one-count indictment. The indictment alleged that in 2005 and 2006,
Reed trafficked in counterfeit goods with brands such as Nike, Louis Vuitton,
Gucci, and Coach. In Reed’s affidavit attached to his § 2255 motion, he states
that he had an initial conference with his trial counsel in November or December
2009. According to Reed, counsel informed him that the government had offered
a plea deal in which Reed would plead guilty to the count involving Louis
Vuitton merchandise and the remaining counts would be dismissed. Reed
further states that counsel informed him that, based on the Sentencing
Guidelines, he would be facing a thirty-six month sentence if he accepted the
plea deal and a forty-eight- to sixty-month sentence if he went to trial.
      On March 25, 2010, Reed was charged in a twenty-one-count superseding
indictment that was nearly identical to the original indictment. According to
Reed’s affidavit, his trial counsel met with him in April 2010 and once again
stated that he would face thirty-six months if he pleaded guilty and forty-eight
to sixty months if he went to trial. In his § 2255 motion, Reed suggests that he
proceeded to trial because the potential sentencing exposure did not seem much
worse than what he would face if he accepted the plea deal. Although two of the
counts were dismissed on the first day of trial, the jury convicted Reed on all
remaining counts. Reed testified at trial, and at one point admitted that he
knew he had been selling counterfeit Louis Vuitton and Coach purses. R. 1055.
However, he stated that he did not know that any of the other merchandise he
sold was counterfeit. Id.

                                       2
    Case: 12-31005      Document: 00512264664       Page: 3    Date Filed: 06/06/2013



                                    No. 12-31005

      The presentence report (“PSR”) calculated a base offense level of eight for
trafficking in counterfeit goods and an eight-level increase based on the
calculated retail value of the counterfeit goods attributed to Reed. The PSR also
recommended a two-level increase on the ground that Reed had obstructed
justice by providing false information. The PSR explained that Reed “testified
during trial that he was unaware the merchandise he was selling in his store
was counterfeit,” but noted that Reed had received letters from mall
representatives on May 2, 2005, and May 23, 2005, complaining about the sale
of counterfeit merchandise from Reed’s store. The PSR recommended a total
offense level of eighteen and a criminal history category of I, giving Ross an
advisory guidelines range of twenty-seven to thirty-three months imprisonment.
Ross did not object to the PSR.
      The district court accepted the proposed guidelines calculation, including
the enhancement for obstruction of justice. The district court stated that “in the
trial the defendant took the stand and testified, and it’s obvious to the Court that
the jury did not buy his side of the story.” R. 1132. The district court departed
from the guidelines range and imposed a sentence of forty-eight months
imprisonment on each count, to run concurrently. The district court explained
that Ross’s criminal history was underrepresented in the guidelines calculation.
      In Ross’s § 2255 motion, he contends that his advisory guidelines range
would have been eight to fourteen months imprisonment if he had accepted the
government’s plea deal.1 Ross argues that his trial counsel rendered ineffective
assistance by erroneously stating that he would face a thirty-six month sentence
if he accepted the government’s plea deal. Ross further argues that he would
have accepted the plea deal but for counsel’s erroneous overestimation of his
sentence. As mentioned above, Ross includes a signed affidavit with his motion.

      1
        Because a certificate of appealability was granted as to only one claim, Ross’s
remaining claims are not addressed here.

                                          3
    Case: 12-31005     Document: 00512264664      Page: 4    Date Filed: 06/06/2013



                                  No. 12-31005

      The government’s response to Ross’s motion does not include an affidavit
from his trial counsel or otherwise challenge the factual assertions in Ross’s
affidavit. The government argues only that “besides the defendant’s allegations,
there is no indication that the attorney ever predicted a certain sentence if the
defendant pleaded guilty.” S.R. 89. The district court rejected Reed’s claim with
the following analysis:
      The only evidence Reed offers the Court in conjunction with this
      allegation [is] his self-serving and uncorroborated account of his
      discussions with his counsel. This is not a sufficient showing that
      Reed’s counsel was, in fact, ineffective during plea negotiations.
      Reed made the decision to go to trial. The outcome was not a
      favorable one for Reed and now he is attempting to go back and
      benefit from a plea bargain he rejected. The Northern District of
      Texas has quite correctly referred to this argument as “a
      quintessential example of attempting to have [one’s] cake and eat it
      too.” Green v. Johnson, 46 F. Supp. 2d 614, 622-23. In Green, the
      court warned that “if habeas relief were freely granted in such
      circumstances, no rational defendant would ever accept a plea
      bargain before trial. Instead, he would try to obtain an acquittal at
      trial and, if unsuccessful, retroactively seek – through habeas relief
      – the benefit of any plea bargain previously offered by prosecution.”
      Based on the lack of competent evidence and the reasoning of Green,
      this allegation must be dismissed.
S.R. 179-80. Reed now appeals the district court’s dismissal of his claim.
                                 DISCUSSION
      “[T]he negotiation of a plea bargain is a critical phase of litigation for the
purposes of the Sixth Amendment right to effective assistance of counsel.”
Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). “When considering whether
to plead guilty or proceed to trial, a defendant should be aware of the relevant
circumstances and the likely consequences of his decision so that he can make
an intelligent choice.” United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th
Cir. 2012). “To establish an ineffective assistance claim, a defendant must show
that counsel’s performance fell below an objective standard of reasonableness


                                         4
       Case: 12-31005   Document: 00512264664    Page: 5   Date Filed: 06/06/2013



                                  No. 12-31005

and that there is a reasonable probability that but for counsel’s poor
performance the result of the proceeding would have been different.” Id. at 357.
As to prejudice, when a defendant alleges that counsel’s deficient performance
caused him to reject a plea offer, he
        must show that but for the ineffective advice of counsel there is a
        reasonable probability that the plea offer would have been
        presented to the court (i.e. that the defendant would have accepted
        the plea and the prosecution would not have withdrawn it in light
        of intervening circumstances), that the court would have accepted
        its terms, and that the conviction or sentence, or both, under the
        offer’s terms would have been less severe than under the judgment
        and sentence that in fact were imposed.
Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). “Any amount of additional jail
time is significant for purposes of showing prejudice.” Rivas-Lopez, 678 F.3d at
357.
A.      Deficient performance
        The district court made no factual findings and did not conclude that
Reed’s allegations were false.      Rather, the district court rejected Reed’s
allegation of deficient performance, without holding an evidentiary hearing, on
the ground that Reed’s “self-serving and uncorroborated account of his
discussions with his counsel” was “not a sufficient showing that Reed’s counsel
was, in fact, ineffective during plea negotiations.” S.R. 179.
        We review the district court’s denial of an evidentiary hearing for abuse
of discretion. United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). “A
motion brought under 28 U.S.C. § 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. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992) (per curiam). Conclusory allegations, unsubstantiated by evidence, do not
support the request for an evidentiary hearing. United States v. Auten, 632 F.2d
478, 480 (5th Cir. 1980).


                                        5
    Case: 12-31005     Document: 00512264664      Page: 6   Date Filed: 06/06/2013



                                  No. 12-31005

      A defendant is entitled to an evidentiary hearing on his § 2255 motion only
if he presents “independent indicia of the likely merit of [his] allegations.” See
United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008). However, this
requirement must be understood practically, in the context of the claim being
presented. For example, when a defendant’s allegations contradict his sworn
testimony given at a plea hearing, we have required more than “mere
contradiction of his statements,” typically “specific factual allegations supported
by the affidavit of a reliable third person.” United States v. Raetzsch, 781 F.2d
1149, 1151 (5th Cir. 1986); United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir.
1985).   Similarly, speculative and unsupported accusations of government
wrongdoing do not entitle a defendant to an evidentiary hearing. See, e.g.,
United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980) (“Auten does not point
to any evidence, nor do we find any in the record, to support his allegation that
the government knowingly used perjured testimony . . . . Auten’s conclusory
assertions do not support the request for an evidentiary hearing.”); United States
v. Edwards, 442 F.3d 258, 265 (5th Cir. 2006) (“Our review of the record reveals
no factual support for this improbable scenario [involving alleged government
Brady violations]; instead, the record affirmatively contradicts Appellants’
arguments.”).
      By contrast, Reed’s allegations are not speculative or conclusory. In his
affidavit, he makes a specific factual claim based on personal knowledge – that
trial counsel predicted a thirty-six month sentence if he accepted the
government’s plea deal.      Reed’s affidavit constitutes competent evidence
sufficient, if believed, to establish that counsel in fact made such a prediction.
Nor do Reed’s allegations contradict any evidence in the record. Moreover, it is
hard to imagine what additional evidence Reed could present to establish what
his trial counsel told him in a presumably private conversation. An affidavit
from Reed’s trial counsel would of course be very helpful, but the government

                                        6
    Case: 12-31005     Document: 00512264664      Page: 7    Date Filed: 06/06/2013



                                  No. 12-31005

has not obtained such an affidavit and it is not clear how Reed could have
obtained it prior to filing his motion. Affidavits from third parties would
seemingly be useless here; even if Reed relayed counsel’s prediction to others,
their testimony would be hearsay and therefore inadmissible to prove that
counsel had in fact made the prediction. Because Reed’s affidavit was sufficient
to prove his allegation and was not speculative, conclusory, plainly false, or
contradicted by the record, the district court erred in rejecting it without holding
an evidentiary hearing.
      The government suggests that Reed’s allegations are inherently
improbable because Reed alleges a prediction of a fixed sentence rather than a
range. The government notes that Ross’s trial counsel was an assistant federal
public defender, and argues that “[a]dvising a defendant of a specific sentence
(36 months) rather than a range is not consistent with the practice of attorneys
with experience in federal criminal matters such as attorneys with the Federal
Public Defender’s office.”    Red Brief at 14.      However, to prove deficient
performance, Reed must show that counsel’s performance fell below an objective
standard of reasonable lawyering. It would be ironic to reject his claim as
unbelievable precisely because he alleges conduct that is inconsistent with the
normal practice of experienced attorneys.
      Assuming trial counsel did predict a thirty-six month sentence for Reed if
he accepted the government’s plea offer, it is unclear whether this constituted
deficient performance. With the benefit of hindsight, thirty-six months does
appear to be a significant overestimation of Reed’s likely guidelines range.
Absent a two-level obstruction of justice enhancement based on Reed’s trial
testimony, and with a likely three-level reduction for acceptance of
responsibility, Reed’s total offense level would be thirteen. With his criminal
history, this would provide a guidelines range of twelve to eighteen months
imprisonment. Of course, based on the information known to counsel at the time

                                         7
     Case: 12-31005      Document: 00512264664    Page: 8   Date Filed: 06/06/2013



                                   No. 12-31005

of her advice to Reed, thirty-six months may well have been a reasonable
prediction. But without additional evidence, we cannot say that “the motion and
the files and records of the case conclusively show that [Reed] is entitled to no
relief.” 28 U.S.C. § 2255(b).
B.       Prejudice
         The district court did not address the issue of prejudice. The government
nonetheless argues that the district court’s dismissal of Ross’s claim may be
affirmed because Ross has failed to establish prejudice resulting from his trial
counsel’s allegedly deficient performance. The government does not dispute
Ross’s description of the plea offer or suggest that it would have been withdrawn
or would not have been accepted by the district court. The government argues,
though, that Ross would not have accepted the plea offer in any case, and that
even if he had, his sentence would not necessarily have been lower.
         Ross states in his § 2255 motion that he would have pleaded guilty if he
had been given an accurate picture of his sentencing exposure. The government
contends that this statement “is not consistent with his assertions of innocence
at trial.” Red Brief at 15. However, Ross states that he was offered a plea deal
in which he would plead guilty to only one count involving counterfeit Louis
Vuitton products. Ross did not assert innocence as to this count, and in fact
admitted at trial that he knew these products were counterfeit. It is not difficult
to conclude that Ross would plead guilty to conduct he was willing to admit at
trial.
         The government also argues that “even if [Ross] had pleaded guilty, in
light of his trial testimony, he would not have necessarily received a reduction
for acceptance of responsibility.” Red Brief at 15. Apparently, its argument is
that because Ross was unwilling to admit to all of the relevant conduct
associated with the offense to which he would have pleaded guilty, he may not
have been deemed to have accepted responsibility for the offense. However, as

                                         8
    Case: 12-31005     Document: 00512264664      Page: 9   Date Filed: 06/06/2013



                                   No. 12-31005

noted above, Ross was clearly willing to admit the conduct underlying the count
that was the subject of the plea offer, and “a defendant is not required to
volunteer, or affirmatively admit, relevant conduct beyond the offense of
conviction in order to obtain a reduction” for acceptance of responsibility.
U.S.S.G. § 3E1.1, cmt. 1(A). In any event, even if Reed would not have received
a reduction for acceptance of responsibility, it seems unlikely that he would have
received an obstruction of justice enhancement.
      The government contends that even if Reed had started from a lower
guidelines range, the district court still could have departed upward based on his
criminal history. This is, of course, true, but there is no reason to conclude that
the district court would have imposed an even higher upward departure if Reed
had pleaded guilty rather than gone to trial. Because any amount of additional
jail time is significant for purposes of showing prejudice, Rivas-Lopez, 678 F.3d
at 357, it is not at all clear that Ross has not been prejudiced by counsel’s
allegedly deficient performance.
                                CONCLUSION
      For the reasons stated above, we VACATE the district court’s order
dismissing Reed’s § 2255 motion only with respect to the claim of ineffective
assistance of counsel during plea negotiations. We REMAND the case to the
district court for further proceedings, to include an evidentiary hearing. We
express no view on the merits of Reed’s claim.




                                        9
