     Case: 14-51204        Document: 00513791793       Page: 1    Date Filed: 12/09/2016




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

                                      No. 14-51204                        FILED
                                                                  December 9, 2016
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

           Plaintiff - Appellee

v.

OLIVER T. CALDERON, also known as Oliver Calderon,

           Defendant - Appellant




                     Appeal from the United States District Court
                          for the Western District of Texas
                                USDC No. 6:14-CV-98


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Oliver T. Calderon, federal prisoner # 04345-380, pleaded guilty,
pursuant to an agreement, to one count of conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h). The factual basis for Calderon’s
guilty plea was set forth in his plea agreement. The plea agreement also
contained a provision under which Calderon waived his right to appeal his
sentence and the right to contest his sentence in any post-conviction


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 14-51204
proceeding. The district court sentenced Calderon to a 135-month term of
imprisonment to be followed by a three-year term of supervised release.
Calderon did not appeal the district court’s judgment.
      Later, represented by counsel, Calderon filed a § 2255 motion along with
a supporting memorandum. He claimed that (1) his trial counsel had been
ineffective for failing to challenge the sufficiency of the factual basis, (2) he was
actually innocent of the crime of conviction, and (3) his counsel had been
ineffective for failing to consult with him regarding a direct appeal. Calderon
requested an evidentiary hearing.
      The Government filed a response to the § 2255 motion. The Government
relied, inter alia, on an affidavit submitted by Calderon’s trial counsel, Joseph
A. Florio. In the affidavit, Florio averred that after conducting legal research
and reviewing the evidence provided through discovery he had concluded that
the case against Calderon was overwhelming. Calderon was unable to provide
Florio with any evidence that would support a defense. According to Florio’s
affidavit, after many discussions, Calderon agreed that some of the allegations
of the indictment were true, and Calderon asked Florio to pursue a plea
agreement. Florio then negotiated a plea agreement that called for Calderon
to plead guilty to Count Three of the indictment.
      The district court issued an order in which it denied § 2255 relief and
denied a COA. It determined that Calderon’s actual innocence claim was
barred by the waiver provision of his plea agreement. The district court further
determined that the actual innocence claim was procedurally barred because
it was being raised for the first time in a § 2255 motion and that Calderon’s
assertion that his counsel’s deficient performance was the cause for not
presenting the claim on appeal failed because, contrary to Calderon’s
assertions, his counsel had consulted with him regarding an appeal. The


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                                            No. 14-51204
district court also determined that Calderon had not made a sufficient showing
of actual innocence.
          Turning to Calderon’s ineffective assistance claims, the district court
determined that the facts set forth in the factual basis were sufficient to
establish that Calderon was guilty of conspiring to launder money under
§ 1956(h). Given its determination that the factual basis was sufficient, the
district court concluded that trial counsel had not performed deficiently by
failing to object to it.
          As to Calderon’s claim that counsel had been ineffective for failing to
consult with him regarding an appeal, the district court determined that the
claim failed because “counsel both consulted with [Calderon] and followed his
instructions in accordance with Strickland’s first-prong requirements.” 1 This
determination was based partially on counsel’s affidavit, which, the district
court stated, indicated that counsel and Calderon “had multiple conversations
concerning the Plea Agreement and the appeal waiver contained therein.” The
district court also relied on counsel’s statements in the affidavit that Calderon
understood the waiver provisions of the plea agreement, as well as on
statements made by Calderon at rearraignment.
          Calderon filed a timely notice of appeal from the district court’s denial of
his § 2255 motion. This court granted a COA on two issues: (1) whether
Calderon’s trial counsel was ineffective for failing to challenge the adequacy of
the factual basis that supported his guilty plea, and (2) whether his trial
counsel was ineffective for failing to consult with him regarding an appeal.
Calderon’s COA request was otherwise denied.




          1   The district court, of course, was referring to Strickland v. Washington, 466 U.S. 668
(1984).
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                                       No. 14-51204
       A defendant may waive his right to appeal and to pursue § 2255 relief, 2
so a preliminary question is whether the waiver provision of Calderon’s plea
agreement bars the ineffective assistance claims at issue in this appeal. Here,
Calderon waived “his right to contest his sentence in any post-conviction
proceeding,” including a § 2255 motion. However, he did not waive the right to
collaterally attack his conviction. The ineffective assistance claims under
consideration in this appeal challenge Calderon’s conviction, rather than his
sentence, and therefore they are not barred by the waiver provision of the plea
agreement. 3 Thus, we turn to his claims.

Ineffective Assistance for Failing to Challenge the Factual Basis
       Calderon argues that the district court erred in denying relief on his
claim that trial counsel was ineffective for failing to challenge the factual basis
for his guilty plea. He contends that the factual basis was insufficient under
United States v. Trejo, 610 F.3d 308 (5th Cir. 2010). Calderon asserts that, but
for counsel’s deficient performance in not challenging the factual basis, there
is a reasonable probability that he would not have pleaded guilty. He contends
that the district court erred in dismissing the claim without conducting an
evidentiary hearing.
       This court reviews a district court’s factual findings for clear error, while
conclusions of law are reviewed de novo. 4 The district court’s conclusions as to
whether Calderon received ineffective assistance of counsel are mixed
questions of law and fact that are subject to de novo review. 5 In order to prevail
on a claim of ineffective assistance of counsel, Calderon must show (1) that his


       2 See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
       3 See United States v. Lopez, 183 F. App’x 435, 436 (5th Cir. 2006) (stating that waiver
provision affecting only the defendant’s ability to appeal or seek § 2255 relief from his
sentence did not affect his ability to appeal or seek § 2255 relief from his conviction).
       4 United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
       5 See id.

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                                      No. 14-51204
counsel’s performance was deficient in that it fell below an objective standard
of reasonableness; and (2) that the deficient performance prejudiced the
defense. 6 A failure to establish either prong defeats the claim. 7
      The Offense of Money Laundering
      Calderon pleaded guilty to violating § 1956(h), which prohibits
conspiring to commit money laundering. “To establish conspiracy to commit
money laundering, the government must prove (1) that there was an
agreement between two or more persons to commit money laundering and (2)
that the defendant joined the agreement knowing its purpose and with the
intent to further the illegal purpose.” 8 The Government need not prove an overt
act in furtherance of the conspiracy. 9 Direct evidence is not required, and each
element of a money laundering conspiracy offense can be inferred from
circumstantial evidence. 10
      The substantive offense of money laundering is defined by § 1956(a), and
the offense can be committed in several ways. 11 Using the following language,
the indictment, tracking the statutory language of two subsections of
§ 1956(a)(1), charged that Calderon and two other named defendants, as well
as other unnamed persons, had conspired beginning in January 2003 “and
continuing until the present time” 12 to commit an offense defined by
§ 1956(a)(1) in that,
      knowing that the property involved in a financial transaction
      represented the proceeds of some form of unlawful activity, [they]
      did conduct or attempt to conduct such a financial transaction,
      affecting interstate or foreign commerce, which in fact involved the


      6 Strickland, 466 U.S. at 689-94.
      7 Id. at 697.
      8 United States v. Fuchs, 467 F.3d 889, 906 (5th Cir. 2006).
      9 Id.
      10 United States v. Cessa, 785 F.3d 165, 174 (5th Cir. 2015).
      11 See § 1956(a)(1)(A)(i), (ii), (B)(1), (ii).
      12 The indictment was filed on April 10, 2012.

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                                      No. 14-51204
       proceeds of specified unlawful activity, that is, the felonious
       receiving, concealment, buying, selling or otherwise dealing in a
       controlled substance, contrary to Title 21, United States Code,
       Sections 841(a)(1) and 846,

              •with the intent to promote the carrying on of the said
              specified unlawful activity, contrary to Title 18, United
              States Code, Section 1956(a)(1)(A)(I), or

              •knowing that the transaction was designed in whole or in
              part to conceal or disguise the nature, the location, the
              source, the ownership or the control of the proceeds of the
              said specified unlawful activity, contrary to Title 18, United
              States Code, Section 1956(a)(1)(B)(I). 13

       The two subsections of § 1956(a)(1) listed in the indictment have been
referred to as “promotional money laundering” (§ 1956(a)(1)(A)(i)) and
“concealment money laundering” (§ 1956(a)(1)(B)(i)). 14 Here, the factual basis
provides no support whatsoever for guilt on a concealment theory, and the
parties dispute only the sufficiency of the factual basis to establish a conspiracy
to commit promotional money laundering.
       “For purposes of § 1956, a financial transaction can be established by
evidence that cash proceeds from drug trafficking are given to the care and
possession of another.” 15 “[T]his court subscribes to a broad interpretation of
the word ‘promote’ within the context of section 1956.” 16 “[T]o ‘promote’
something is to ‘contribute to its growth, enlargement, or prosperity of; . . . to
advance.’” 17 “Payment to co-conspirators for their participation in the
conspiracy for the purpose of continuing the unlawful activity amounts to



       13 Indictment.
       14 United States v. Armstrong, 550 F.3d 382, 403 (5th Cir. 2008), abrogation on other
grounds recognized by United States v. Guillermo-Balleza, 613 F.3d 432, 433 n.1 (5th Cir.
2010).
       15 United States v. Lozano, 158 F. App’x 632, 639 (5th Cir. 2005).
       16 United States v. Valuck, 286 F.3d 221, 226 (5th Cir. 2002).
       17 Id. (citation, parenthetical, and brackets omitted).

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                                        No. 14-51204
‘promoting the carrying on of the unlawful activity.’” 18 Where defendants
engage in the illegal distribution of narcotics, their further purchases of
controlled substances “clearly promote their illegal activity.” 19
       Calderon argues that the factual basis is insufficient to establish that he
conspired to commit a “promotional” money laundering offense under
§ 1956(a)(1)(A)(i) because it fails to establish that he had the requisite mens
rea. He relies on Trejo, wherein this court, discussing § 1956(a)(1)(A)(i), stated
that “the Government must satisfy a stringent mens rea requirement.” 20 To
establish the requisite mens rea, “[e]ssentially, the government must show the
transaction at issue was conducted with the intent to promote the carrying on
of a specified unlawful activity.” 21 It is not enough merely to show that the
defendant’s actions resulted in the promotion of specified unlawful activity, nor
is the government’s burden met by proof that the defendant knowingly
promoted the unlawful activity. 22 “Instead, there must be evidence of
intentional promotion. In other words, the evidence must show that the
defendant’s conduct not only promoted a specified unlawful activity but that
he engaged in it with the intent to further the progress of that activity.” 23
       “Determining whether specific intent to commit promotion money
laundering has been proven is necessarily a fact-bound inquiry frequently
turning upon circumstantial evidence.” 24 In cases like the one at bar, where


       18 Lozano, 158 F. App’x at 639 (citation omitted).
       19 United States v. Brown, 553 F.3d 768, 786 (5th Cir. 2008).
       20 Trejo, 610 F.3d at 314. Trejo actually involved a prosecution under § 1956(a)(2)(A),

rather than the provision at issue in the instance case, § 1956(a)(1)(A)(i), but the court in
Trejo indicated that guidance could be derived from cases construing § 1956(a)(1)(A)(i), See
610 F.3d at 314. This court has relied on Trejo in cases involving § 1956(a)(1)(A)(i). See, e.g.,
United States v. Ramirez, 55 F. App’x 315, 320-21 (5th Cir. 2014); United States v. Holt, 493
F. App’x 515, 520 (5th Cir. 2012).
       21 Trejo, 610 F.3d at 314.
       22 Id.
       23 Id. (internal citation omitted).
       24 Id. at 315.

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                                No. 14-51204
drug trafficking is the underlying criminal activity, “courts have often relied
on proof that the defendant was aware of the inner workings of and/or
extensively involved in the drug organization responsible for the criminal
activity as circumstantial proof that he had the specific intent to promote its
unlawful purpose.” 25 Courts have consistently required “some additional
evidence beyond the bare transaction or transportation itself to infer specific
intent.” 26
       The Factual Basis
       Calderon’s written factual basis largely concerned the activities of
Freddie Rodriguez and Rodriguez’s drug organization. According to the written
factual basis, beginning in 2003, Rodriguez obtained drugs which were
supplied to individuals and eventually sold. When the drugs were sold,
currency was collected and paid to Rodriguez or to his designees. Rodriguez
would gather the bulk currency, take out his portion, “and then package the
remaining amounts to be transported to his suppliers in Mexico and elsewhere
so that additional drugs could be obtained.”
       In August 2005, Rodriguez purchased a residence on Hunter Street in
Cedar Hill, Texas, which he used “to store large amounts of cocaine,
methamphetamine, and bulk currency.” In late 2008, Calderon began living in
a music production/recording studio in Cedar Hill; the studio was located on
property owned by Rodriguez. Calderon earned little money from his musical
endeavors. He ran personal errands for Rodriguez and earned money by doing
so. In late 2010, Rodriguez invited Calderon to live at the Hunter Street
residence.




       25   Id.
       26   Id.
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                                  No. 14-51204
      In February 2011, cocaine was delivered to the Hunter Street residence,
where Rodriguez was conducting a drug transaction. Rodriguez allowed
Calderon to view the people unloading the cocaine, and he “told [Calderon]
about his cocaine operation.” Calderon was shown a safe in the Hunter Street
residence which contained money and cocaine.
      Subsequently, on an unspecified date, Calderon overheard Rodriguez
talking with others about transporting a load of cocaine to St. Louis, Missouri.
On the trip to St. Louis, which Rodriguez planned, Calderon drove a
recreational vehicle (RV) that carried the cocaine. Rodriguez and another
person, traveling in a separate vehicle, escorted the RV driven by Calderon.
Once in St. Louis, Rodriguez conducted a cocaine transaction. According to
Rodriguez, Calderon was paid $10,000 for transporting the cocaine.
      On three occasions in 2011, dates unspecified, Calderon, as instructed by
Rodriguez, transported cocaine from Houston, Texas, to Dallas, Texas. On each
trip, Rodriguez traveled in a separate vehicle and escorted the vehicle driven
by Calderon. “Upon each arrival at Houston, [Rodriguez] transacted each
unlawful cocaine transaction.”
      On June 8, 2011, a search warrant was executed at the Hunter Street
residence. During the search, law enforcement agents seized cocaine,
methamphetamine, and bulk currency.
      All of the above information from the factual basis was read aloud by the
Government’s attorney at Calderon’s rearraignment, but the written factual
basis contained other information that the attorney failed to read. The unread
portion stated that “[s]ome members of the [Rodriguez] organization knew that
the proceeds they collected were from the sale of controlled substances.” After
it was collected, “[t]he money would then be returned either to the suppliers or
to the suppliers, like [Rodriguez], who in turn would use the money to invest,
pay off suppliers in order to ‘re-up,’ or for living expense use.”
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                                  No. 14-51204
      Calderon agreed at rearraignment that the factual basis read by the
Government’s attorney was correct. As to the written factual basis, Calderon
initialed each page and signed the document, thereby agreeing and stipulating
that “this factual basis is a true and accurate summary of the Defendant’s
offense and the conduct related to his offense.”
      Analysis
      In Trejo, this court noted the difficulty in delineating “a precise standard
of proof for specific intent” in promotional money laundering cases. 27
Nevertheless, based on the guidance provided by Trejo, we conclude that the
factual basis was sufficient to show that Calderon had the requisite mens rea.
The facts of Calderon’s case are readily distinguishable from those of Trejo, on
which he heavily relies, wherein the factual basis was insufficient to support a
promotional money laundering conviction. 28
      In Trejo, the defendant was paid $1,000 by “a drug dealer named ‘Jose’
to load Trejo’s car with drug money and transport it from Florida to presumed
traffickers in Mexico.” 29 They were caught in Texas, where they confessed that
they were hired to transport drug money, but they only had vague information
about the drug dealers who had hired them. 30 The court explained that there
is necessarily some distinction between simply knowing that one has
participated in a drug money scheme and having the “intended purpose in
doing so—an end-goal, if you will—. . . to further the progress of the drug
business.” 31
      The court found that the incriminating facts showed only that “Trejo
signed on for a one-time trip to transport drug money for a dealer he did not


      27 610 F.3d at 315.
      28 Id. at 318.
      29 Id. at 317.
      30 Id.
      31 Id. (emphasis added).

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                                  No. 14-51204
know and, except for the one trip, had never worked for in the past.” 32 Even
when he confessed to the crime of transporting the drug money, Trejo was
unable to provide any details about “Jose”; indeed, “[e]vidence regarding the
inner workings of the organization that hired him—assuming that an
operation even existed beyond ‘Jose’—is virtually nonexistent in the record.” 33
In essence, the record did not disclose Trejo’s knowledge of any part of the drug
operation beyond his one paid job. “Because the record [was] devoid of facts,
circumstantial or otherwise, beyond the bare act of transportation,” this court
determined “that the factual basis for Trejo’s plea does not adequately support
his conviction for promotion money laundering and that the district court erred
in accepting his plea on the facts presented.” 34
      By contrast, the factual basis in the instant case shows that Calderon
was not a mere one-time, otherwise ignorant participant in the illegal scheme.
To the contrary, he had a great deal of knowledge concerning the scheme and
its participants. In addition to Calderon’s involvement in the transportation of
cocaine on several occasions under Rodriguez’s watch (including the payment
of $10,000), Calderon lived in a music production recording studio owned by
Rodriguez beginning in late 2008 and ran personal errands for Rodriguez
during this time. Calderon then lived for several months at the Hunter Street
residence owned by Rodriguez, which was the site of at least one cocaine
transaction that Rodriguez allowed Calderon to witness, and which was used
for the storage of large quantities of cocaine, methamphetamine, and bulk
currency. Rodriguez showed Calderon money and cocaine that was within a
safe at the Hunter Street residence, and Rodriguez told Calderon about his
cocaine operation. Indeed, Calderon transported cocaine himself on three


      32 610 F.3d at 318.
      33 Id.
      34 Id.

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                                    No. 14-51204
separate occasions from Houston to Dallas, where Rodriguez would conduct
the transaction.
      In sum, unlike in Trejo, the record evidence shows that Calderon’s
knowledge went well “beyond the bare act of transportation.” 35 Although none
of these facts constitutes “direct evidence, such as a statement by the
defendant, of an intent to promote specified unlawful activity,” such is not
always required. 36 Here, the factual basis is sufficient because it establishes
“that [Calderon] was aware of the inner workings of and/or extensively
involved in the drug organization responsible for the criminal activity,” thus
providing “circumstantial proof that he had the specific intent to promote its
unlawful purpose.” 37
      Because the factual basis was sufficient, Calderon’s trial counsel did not
perform deficiently by failing to raise a meritless objection to it. 38 Accordingly,
Calderon’s ineffective assistance claim fails. 39 To the extent that Calderon
argues that the district court erred by not holding an evidentiary hearing on
this claim, his contention lacks merit as a district court may forgo an
evidentiary hearing in deciding a § 2255 motion “if the motion, files, and
records of the case conclusively show that the prisoner is entitled to no relief.” 40

Ineffective Assistance for Failing to Consult Regarding an Appeal
      Calderon claims his trial counsel was ineffective for failing to consult
with him regarding an appeal, specifically an appeal of the factual basis claim
which we determined to be unmeritorious above. He argues the district court



      35  Id. at 318.
      36   United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999) (sufficiency-of-the-
evidence case).
       37 Trejo, 610 F.3d at 315.
       38 See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990).
       39 See Strickland, 466 U.S. at 697.
       40 See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).

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                                  No. 14-51204
erred in denying relief on the claim based on its determination that his counsel
discussed the appeal waiver provision of the plea agreement with him.
Calderon asserts that his counsel’s affidavit does not address the failure-to-
consult claim. He contends that his counsel “was surely aware of Calderon’s
expressed misgivings regarding the Plea Agreement” based on their
discussions prior to entry of the guilty plea—in which, we note, he expressly
agreed to waive his right to direct appeal despite his misgivings. Notably, he
does not allege that, following entry of the Plea Agreement, he ever expressed
to his attorney a desire to appeal. The outcome of this claim turns on
Strickland’s performance and prejudice prongs.
      Performance Prong
      Under Roe v. Flores-Ortega, 528 U.S. 470 (2000), “a lawyer who
disregards specific instructions from the defendant to file a notice of appeal
acts in a manner that is professionally unreasonable.” 41 In cases where the
defendant “neither instructs counsel to file an appeal nor asks that an appeal
not be taken,” the deficient-performance inquiry involves “a separate, but
antecedent, question: whether counsel in fact consulted with the defendant
about an appeal.” 42 In this context, “consult” means that counsel tendered
advice about the advantages and disadvantages of appealing and made a
“reasonable effort to discover” the defendant’s wishes on the issue. 43 In those
cases where counsel has consulted with the defendant, deficient performance
is shown if counsel fails “to follow the defendant’s express instructions with
respect to an appeal.” 44




      41 528 U.S. at 477.
      42 Id. at 478.
      43 Id.
      44 Id.

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                                    No. 14-51204
      If counsel has not consulted with the defendant about appealing, the
deficient-performance inquiry focuses on whether the decision not to consult
with the defendant was unreasonable. 45 Counsel has a constitutionally
imposed duty to consult with a defendant about appealing “when there is
reason to think either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” 46 The general requirement is that the attorney’s
decision whether to consult with the defendant be an objectively reasonable
choice in light of all relevant factors. 47
      Calderon asserts that counsel did not consult with him regarding an
appeal, and that counsel’s failure was unreasonable. In the instant case, the
district court determined that counsel had in fact consulted with Calderon
regarding an appeal based on counsel’s affidavit, wherein he averred that he
had discussed the waiver provisions of the plea agreement with Calderon. The
district court also pointed to Calderon’s statements at rearraignment that he
was satisfied with his attorney’s representation and that he understood he had
waived his right to appeal. Calderon does not dispute that counsel discussed
the appeal waiver provision with him, but he argues that this does not
constitute consultation regarding an appeal. We agree.
      In United States v. Cong Van Pham, 722 F.3d 320 (5th Cir. 2013), the
defendant, Pham, pleaded guilty pursuant to an agreement that contained an
appeal waiver provision. 48 When Pham consulted with his attorney prior to
entering his guilty plea, they discussed the appeal waiver provision, and Pham



      45 Id. at 479.
      46 528 U.S. at 480.
      47 Id. at 479-80.
      48722 F.3d at 322.

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                                       No. 14-51204
told his counsel he believed he would receive probation despite the fact that his
counsel had informed him of the possibility of receiving a statutory mandatory
minimum sentence. 49 At sentencing, the government declined to allow Pham
to take advantage of a safety valve provision, so he was sentenced to the
statutory mandatory minimum of five years. 50 He eventually filed a § 2255
petition to vacate his sentence, based on his attorney’s ineffective assistance in
failing to consult with him regarding an appeal after he was sentenced. 51
      This court determined that Pham’s attorney had not sufficiently
consulted with him where, at most, “counsel discussed an appeal in the
abstract and even then did so only before the sentence was pronounced,” and,
post-sentencing, counsel “neither mentioned the possibility of an appeal at all
nor made any effort to discover Pham’s wishes in that regard.” 52 We
emphasized that:
      Pham’s counsel knew that Pham had hoped to receive a sentence
      of probation only. When that hope did not materialize, a visibly
      upset Pham “brought up that he was concerned about getting 60
      months and wanted to do something to get less time.” This was
      ample demonstration of Pham's interest in doing something to
      change the outcome of his sentencing through additional
      proceedings. We hold that this statement to counsel, when viewed
      in context, was enough to trigger counsel's constitutional duty to
      consult with Pham about an appeal. 53

      We also explained that if Pham had been sentenced to probation instead
of the statutory mandatory minimum, as he wished, that lower sentence “could
have accomplished his desire not to serve prison time and thereby pretermit
any need to appeal. Thus, Pham had no reason to demonstrate an interest to



      49 Id.
      50 Id at 322-23.
      51 Id. at 323.
      52 Id. at 324 (emphasis in original).
      53 Id. at 325.

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                                        No. 14-51204
appeal a sentence that had not yet been imposed.” 54 In essence, we concluded
that Pham’s counsel’s failure to consult with him regarding an appeal following
his sentencing was unreasonable because the sentencing raised a new issue
that did not exist when they consulted regarding the plea agreement.
      Here, as in Cong Van Pham, there is no indication in the record that
Calderon’s counsel consulted with him regarding an appeal after the sentence
was imposed, and we conclude that the district court erred in its determination
that Calderon received a consultation regarding an appeal. However, that does
not end the inquiry. We must determine whether counsel was unreasonable in
not doing so. 55
      This case differs from Cong Van Pham in some crucial respects. In that
case, when Pham and his attorney consulted, Pham expressed his belief that
he would get a sentence below the statutory mandatory minimum, and his
counsel knew that he had entered his guilty plea on that belief. Thus, when he
was later sentenced to the statutory mandatory minimum, his attorney should
have known, based on Pham’s previously expressed wishes, that the actual
sentence was unacceptable. We even emphasized in the opinion that Pham’s
counsel might have been reasonable in not consulting with him on an appeal if
he had received a sentence lower than the statutory mandatory minimum.
Stated differently, Pham’s counsel’s failure to consult with him following his
sentencing was unreasonable because changing circumstances had raised the
possibility of a new claim.
      In Calderon’s case, however, his claim concerns whether the Plea
Agreement’s factual basis was sufficient to support his guilty plea. The entire
basis for that claim was known at the time he entered his guilty plea. Calderon



      54   Id. at 326.
      55   See Flores-Ortega, 528 U.S. at 479.
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                                     No. 14-51204
consulted with his attorney prior to entry of his guilty plea, and they discussed
his concerns about the factual basis and the waiver of the right to a direct
appeal. His attorney even informed the court about Calderon’s concerns about
the factual basis in a motion to withdraw.
      Nevertheless, Calderon chose to enter his guilty plea in accordance with
the Plea Agreement, supported by the factual basis, fully aware he was waiving
his right to a direct appeal. Unlike in Cong Van Pham, nothing material
changed after that point, and Calderon’s underlying claim in this § 2255 action
concerns the factual basis, which he had already discussed with his attorney
and which, for the reasons we set out above, lacks merit. Thus, we conclude
Calderon’s counsel was not unreasonable for failing to consult with Calderon
regarding an appeal on these facts. As a result, we conclude Calderon has failed
to satisfy the performance prong of Strickland.
      Prejudice Prong
      Similarly, he has also failed to satisfy the prejudice prong on these facts.
The prejudice prong of Strickland is satisfied if the defendant establishes “that
there is a reasonable probability that, but for counsel’s deficient failure to
consult with him about an appeal, he would have timely appealed,” 56
regardless of whether his appeal had merit. 57 The rule applies in this circuit
even in cases where a defendant has entered a guilty plea and waived appellate
rights, “if the petitioner is able to demonstrate by a preponderance of the
evidence that he requested an appeal.” 58 As the Supreme Court explained,
“[t]he performance and prejudice inquiries may overlap” in this context, “but
they are not in all cases coextensive.” 59 In this case, however, the outcome is



      56 Id. at 484.
      57 See id. at 486.
      58 United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
      59 Id. at 472.

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                                 No. 14-51204
the same as the performance prong. Calderon has not even alleged that he
requested an appeal after entering his guilty plea, and he has not pointed to
any evidence that he would have actually appealed, but for his counsel’s failure
to consult with him regarding an appeal. In sum, he has not shown prejudice
under Strickland. Thus, we affirm on this point.

Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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