                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-6449


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ISHMAEL AVIVE SANTIAGO,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:11-cr-00287-BO-2; 5:13-cv-00796-BO)


Argued:   October 27, 2015               Decided:   December 22, 2015


Before NIEMEYER and SHEDD, Circuit Judges, and M. Hannah LAUCK,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Christopher D. Smith, WEST VIRGINIA UNIVERSITY COLLEGE
OF LAW, Morgantown, West Virginia, for Appellant.   Seth Morgan
Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.    ON BRIEF: Lawrence David Rosenberg,
Washington, D.C., Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant.    Thomas G. Walker, United States
Attorney,   Jenifer  P.  May-Parker,   Assistant United  States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Ishmael Avive Santiago appeals the denial of his 28 U.S.C.

§ 2255     motion,     arguing   that   his       counsel    rendered    ineffective

assistance at his Rule 11 hearing, at sentencing, and on appeal.

See    Strickland      v.   Washington,         466   U.S.   668    (1984).    Because

Santiago fails to show Strickland prejudice, we affirm.

                                            I.

       Santiago       was   charged    in    a    three-count       indictment      with

conspiracy       to   commit   Hobbs    Act      robbery,    in    violation     of   18

U.S.C. § 1951 (Count 1); Hobbs Act robbery, in violation of 18

U.S.C. §§ 1951 and 2 (Count 2); and using and carrying a firearm

and possessing a firearm in furtherance of a crime of violence

and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and

2 (Count 3). These charges stem from the robbery of a Walgreens

in    Clayton,    North     Carolina,   carried       out    by    Santiago   and     his

cousin, Rhaim.

       As the two men entered the store, they wore bandanas over

the lower portion of their faces and Rhaim was armed with an SKS

rifle 1. After they entered the store, Rhaim accosted a store

clerk who was stocking merchandise, pointed his rifle at her,



       1
       Although not necessary for our decision, we note that
Rhaim and Santiago both confessed to authorities that they
mutually agreed, along with an unnamed juvenile male, to
purchase a rifle and commit an armed robbery.



                                            3
and demanded that she open the cash register. Upset that the

clerk was taking too long, Rhaim struck her in the back of the

head       with      the    rifle     and    walked    her     to     the    cash      register.

Santiago        and     Rhaim     absconded     with    less     than       $500.      The   store

clerk suffered a laceration on the back of her head and was

treated         at    the     local    hospital.       Santiago       turned        himself     in

several days later and confessed his involvement in the robbery.

In addition, authorities recovered a cell phone with images of

Santiago        and     Rhaim     posing     with    the   gun      and     money      after    the

robbery 2.

       At Santiago’s initial hearing before a magistrate judge, he

was told that the § 924(c) count subjected him to “a penalty of

not    less       than      [five]     years,   no     more    than       life    imprisonment

consecutive to any other sentence imposed.” (S.J.A. 231). The

magistrate           judge     asked    if    Santiago        understood         and    Santiago

responded affirmatively.

       Prior to trial, Santiago decided to plead guilty to Counts

1 and 3 pursuant to a plea agreement. Relevant here, regarding

Count      1,     the      plea   agreement     provided       that    Santiago         would   be

entitled to a three-level reduction of his offense level due to

acceptance of responsibility. As to Count 3, the plea agreement

explained that Santiago faced a maximum term of imprisonment of

       2   The robbery was also caught on video surveillance.



                                                4
“life,    consecutive         to   any     other      term    of    imprisonment”      and   a

minimum term of imprisonment of “[five] years, consecutive to

any   other    term      of    imprisonment.”             (J.A.    212).   Santiago     also

agreed, as part of the plea agreement, that:

      the Court will take into account, but is not bound by,
      the applicable United States Sentencing Guidelines,
      that the sentence has not yet been determined by the
      Court, that any estimate of the sentence received from
      any source is not a promise, and that even if a
      sentence up to the statutory maximum is imposed, the
      Defendant may not withdraw the plea of guilty.

(J.A. 212).

      The district court conducted a Rule 11 colloquy prior to

accepting      Santiago’s          plea.    During          the    colloquy,    the     court

mistakenly stated that Count 3 “carries up to five years in

prison . . . consecutive to any other prison time.” (J.A. 27-28)

(emphasis added). Neither the Government nor Santiago’s attorney

objected      to   this       statement.     The          court    also   did   not   inform

Santiago    of     the    potential        for       an    enhanced   mandatory       minimum

under § 924(c)(1)(A). 3 After the court’s misstatement, Santiago

affirmed that he read and understood the plea agreement and that

he had no additional questions. Santiago also affirmed that his

counsel had explained the plea agreement and that his plea was


      3Section 924(c) provides a mandatory minimum of five years
if the defendant used and carried a firearm during a crime of
violence, but also provides for an enhanced penalty of seven
years if the firearm was brandished and ten years if the firearm
was discharged. 18 U.S.C. § 924(c)(1)(A)(i-iii).



                                                 5
voluntary. At the end of the hearing, the court accepted the

plea.

      Following         the    Rule     11    hearing,         the    probation       office

prepared Santiago’s Presentence Report (PSR). On Count 3, the

PSR found that because the firearm was brandished during the

robbery, § 924(c)(1)(A)(ii) applied. That statute provides for a

mandatory minimum of seven years imprisonment (rather than five)

if   the    firearm      was   brandished.        Thus,     the      PSR    recommended     a

guidelines range of 84 months on Count 3 consecutive to any

sentence for Count 1. For Count 1, the PSR recommended a base

offense level of 20, with a three-level enhancement for causing

bodily injury, a four-level enhancement for abduction, and a

three-level       reduction       for   acceptance        of    responsibility.          This

calculation yielded a total offense level of 24 and a guidelines

range      of   51-63    months    imprisonment.          Without      the       three-level

reduction for acceptance of responsibility provided by the plea

agreement,       Santiago       faced    an       offense      level       of    27   and   a

corresponding guidelines range of 70-87 months imprisonment.

      At sentencing, Santiago confirmed that he had received the

PSR and had an opportunity to review it prior to the hearing.

When asked twice if he had any comment on the PSR, Santiago

deferred to counsel, who objected to the four-level abduction

enhancement       on    Count     1.    Neither      Santiago         nor       his   counsel

mentioned the increase in the mandatory minimum from five years

                                              6
to seven years and at no point did Santiago move to withdraw his

plea.     The    district         court     overruled     the   objection          to   the

abduction       enhancement        and    sentenced       Santiago     to     51     months

imprisonment on Count 1 and 84 months imprisonment on Count 3,

to run consecutively.

      Santiago filed a timely notice of appeal. Counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), but

did ask us to review the four-level abduction enhancement. We

issued a per curiam opinion affirming in part and dismissing in

part. United States v. Santiago, 498 Fed. App’x 222 (4th Cir.

2012). In reviewing Santiago’s guilty plea, we concluded that

the     district      court       “substantially      complied       with     Rule      11’s

requirements, and committed no error warranting correction on

plain error review.” Id. at *224.

      In November 2013, Santiago filed a motion to vacate his

conviction       under       28    U.S.C.     §   2255.    Santiago         attached     an

affidavit alleging that his counsel was ineffective for failing

to    object     to    the    district       court’s      misstatement        about     the

sentence and, consequently, his plea was unknowing as to Count

3. Santiago alleged that, had the district court’s error not

occurred, he would have pleaded not guilty on Count 3 and gone

to trial and “likely would have received the 60 month sentence”

for Count 3. (J.A. 67). The Government moved to dismiss, arguing

that any error by the district court was cured by the plea

                                              7
agreement,    which    correctly     stated       that     five   years    was     the

statutory minimum, not the statutory maximum. The district court

granted the motion to dismiss, concluding that counsel was not

ineffective in failing to object at the Rule 11 hearing because

the plea agreement had the proper terms. The court explained,

“[Santiago]    cannot        meet   the       Strickland     standard      to    show

ineffective    assistance      of   counsel      as   it    is    not   objectively

unreasonable to refuse to object to harmless error or pursue

such a claim on appeal.” (J.A. 119).

       Santiago filed a timely appeal and this court issued the

following certificate of appealability:

       We grant a certificate of appealability on Santiago’s
       claim that his counsel, Leza Lee Driscoll, rendered
       ineffective assistance of counsel at the Fed. R. Crim.
       P. 11 hearing, at sentencing and on direct appeal for
       failing to object to or raise a claim concerning the
       district court’s failure to advise Santiago of the
       correct mandatory minimum and maximum penalties he was
       facing for a violation of 18 U.S.C. § 924(c) (2012).

(J.A. 125).

                                      II.

       We review de novo the district court’s decision on a motion

to vacate under § 2255. United States v. Poindexter, 492 F.3d

263, 267 (4th Cir. 2007). “We are entitled to affirm on any

ground appearing in the record, including theories not relied

upon   or   rejected    by    the   district      court.”     United      States    v.




                                          8
Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015) (internal

quotation marks omitted).

       To        prevail     on     an     ineffective          assistance         claim   under

Strickland,           Santiago      must    satisfy       “two      necessary       components.”

Jones   v.        Clarke,     783    F.3d     987,      991    (4th     Cir.    2015).     First,

Santiago “must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that

counsel      was      not    functioning          as    the    ‘counsel’       guaranteed    the

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

Second,       Santiago        “must      show     that        the    deficient      performance

prejudiced         the     defense.        This   requires          showing    that    counsel’s

errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Id. The Strickland

Court also made clear that “[i]f it is easier to dispose of an

ineffectiveness             claim     on    the    ground        of    lack    of     sufficient

prejudice, . . . that course should be followed,” and we do so

here. Id. at 697.

       To establish Strickland prejudice, Santiago “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.” Id. at 694.

“Strickland asks whether it is ‘reasonably likely’ the result

would have been different,” and the “likelihood of a different

                                                   9
result must be substantial, not just conceivable.” Harrington v.

Richter, 562 U.S. 86, 111-12 (2011).

      This    prejudice      analysis        contains           another      layer   in    the

context of a guilty plea. Because a guilty plea is a “solemn

declaration[]       in    open   court,”      it        has   “strong     presumption        of

verity” that we will not set aside on “subsequent presentation

of conclusory allegations unsupported by specifics.” Blackledge

v. Allison, 431 U.S. 63, 74 (1977). Because “a prisoner has

everything to gain and nothing to lose from filing a collateral

attack upon his guilty plea,” id. at 71, “strict adherence to

the   Strickland         standard     [is]        all    the     more     essential       when

reviewing     the   choices      an   attorney           made    at    the    plea   bargain

stage,” Premo v. Moore, 562 U.S. 115, 125 (2011).

      Thus,    to        establish     a      “reasonable             likelihood”         under

Strickland in this context, 4 Santiago must show a “reasonable

probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Id.

at 129 (internal quotation marks omitted). Importantly, Santiago

must show both subjectively that he would have gone to trial and



      4Santiago has three claims of ineffective assistance: at
the Rule 11 hearing; at sentencing once the seven year mandatory
minimum was adopted; and on appeal for failing to raise the Rule
11 violation. However, all three ultimately turn on Santiago’s
contention that he would have gone to trial if he had been aware
of the seven year mandatory minimum.



                                             10
that it would have been objectively reasonable to do so. United

States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) (holding

“what matters is whether proceeding to trial would have been

objectively     reasonable        in   light    of        all   of   the     facts”).

Santiago’s     “subjective         preferences,           therefore,        are   not

dispositive.” Id. As we recently explained:

       The challenger “cannot make that showing merely by
       telling [the court] now that [he] would have gone to
       trial then if [he] had gotten different advice.” Pilla
       v. United States, 668 F.3d 368, 372 (6th Cir. 2012).
       In other words, to obtain relief from a guilty plea,
       the defendant must do more than allege he would have
       insisted on going to trial if counsel had not
       misadvised him as to the consequences of that
       decision. The “petitioner must convince the court that
       a decision to reject the plea bargain would have been
       rational   under   the   circumstances.”  Padilla   v.
       Kentucky, 559 U.S. 356, 372 (2010).

Christian v. Ballard, 792 F.3d 427, 452 (4th Cir. 2015).

       We readily acknowledge as a preliminary matter that the

district   court     committed     error     when    it    stated    that    Santiago

faced a maximum of five years imprisonment rather than a minimum

of five years and that Santiago’s counsel should have noticed

this   error   and   moved   to    correct     it.   Santiago’s       counsel     also

failed to recognize that the court did not inform Santiago of

the potential for enhanced mandatory minimums under § 924(c). 5 It




       5
       At the very least, it became apparent that Santiago faced
a possible seven year mandatory minimum for brandishing when the
Government, in putting the factual basis for the plea on the
(Continued)
                                        11
is pellucid that “a district court’s failure to alert a criminal

defendant to a potential mandatory minimum sentence is a serious

omission that strikes at the core of Rule 11.” United States v.

Massenburg, 564 F.3d 337, 346 (4th Cir. 2009); see also United

States v. Hairston, 522 F.3d 336, 341-42 (4th Cir. 2008) (same).

That Santiago’s counsel failed to notice these errors, however,

does   not   mean   that   Santiago      was    prejudiced     by   his   counsel’s

failure.

       “Pleading guilty generally involves a conscious decision to

accept both the benefits and burdens of a bargain. That decision

may not be lightly undone by buyer’s remorse on the part of one

who has reaped advantage from the purchase.” Fugit, 703 F.3d at

260. Moreover, “[d]efendants plead guilty for various reasons,

many of which are wholly unrelated to the length of a potential

sentence.” Massenburg, 564 F.3d at 344. Here, it would not have

been rational for Santiago to go to trial given the strength of

the    Government’s   case     against    him    and     the   benefits    Santiago

derived from the plea agreement. We have repeatedly noted that

when the Government’s case is strong, a defendant faces a nearly

insurmountable      obstacle    to   showing      that    it   would      have   been

rational to go to trial. Christian, 792 F.3d at 453 (noting not



record, stated that Santiago’s co-defendant struck the clerk in
the back of the head with the gun.



                                         12
rational to reject plea when guilt was overwhelming), Fugit, 703

F.3d at 260 (same); Massenburg, 564 F.3d at 344 (noting when

case was a “strong one” the court “can legitimately question

what Massenburg would have to gain by going to trial”).

       The    Government       presented        overwhelming      evidence      of

Santiago’s     guilt.    The    robbery     was    on      videotape,   Santiago

confessed to robbing the Walgreens with his cousin, and images

depicted the two men posing with the gun and the money following

the robbery. Santiago argues that he did not possess the gun

that    was   brandished,   but   Count     3    charged    Santiago    with   the

§ 924(c) violation and aiding and abetting. Santiago’s defense

that his cousin, with whom he committed the robbery, had actual

possession of the gun is not a “rational defense” against an

aiding and abetting § 924(c) charge. Pilla, 668 F.3d at 373.

       In addition, there is no record evidence from Santiago’s

plea or sentencing hearings suggesting that Santiago would have

moved    to   withdraw   his    plea   if   the    correct     information     was

provided. While the district court called the five-year term a

maximum rather than a minimum, the plea agreement—which Santiago

affirmed multiple times he had read—correctly referred to the

five-year term as a mandatory minimum. Regarding the seven-year

minimum recommended by the PSR, the district court specifically

asked Santiago if he read the PSR and had any objections or

comments on it. While the PSR “cannot cure the Rule 11 violation

                                       13
in    his    case,”          Santiago’s      failure           to    take   any     action    after

learning      of      the     seven     year    mandatory            minimum      provides    “some

evidence         that    he     would     have    entered            the    plea     regardless.”

Massenburg, 564 F.3d at 344.

          Finally,      as     recounted       above,          the   low-end       of   Santiago’s

guidelines range on Count 1 dropped from 70 months to 51 months

as    a    result       of    the     three-level         reduction         for    acceptance    of

responsibility provided by the plea agreement. If Santiago had

gone to trial, he would have faced the same mandatory minimum of

seven years on Count 3, and, without the three-level reduction

for acceptance of responsibility, he would have been looking at

a    longer      sentence        on    Count     1.       In    effect,      then,      the   “only

consequence” of Santiago’s decision to plead guilty rather than

going to trial “is that [Santiago] got a shorter prison term

than otherwise.” Pilla, 668 F.3d at 373. That decision certainly

did not prejudice Santiago.

          Santiago’s argument amounts to a presumption of Strickland

prejudice        in     mandatory-minimum             cases.         We    have    rejected     this

position in the context of plain error, and we reject it again

here.      See     Massenburg,         564     F.3d       at    345       (noting    “[a]bsent    a

presumption of prejudice, Massenburg is left only to appeal to

our desire for an adjudicatory process that is free from error,”

and   “[e]rrors          are    commonplace,          .    .    .    and    our     affection    for

procedural perfection cannot operate to the detriment of our

                                                 14
commitment     to   other,     equally        important,    principles   of

adjudication”).

                                      III.

     Because    Santiago     cannot    show    Strickland   prejudice,   we

affirm the district court’s dismissal of his § 2255 motion.



                                                                   AFFIRMED




                                       15
