                        NONPRECEDENTIAL DISPOSITION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

                               Submitted April 7, 2015 *
                                Decided April 8, 2015

                                        Before

                         FRANK H. EASTERBROOK, Circuit Judge

                         ANN CLAIRE WILLIAMS, Circuit Judge

                         DAVID F. HAMILTON, Circuit Judge

No. 13-3361

JERMEL C. THOMAS,                              Appeal from the United States District
     Petitioner-Appellant,                     Court for the Northern District of
                                               Indiana, South Bend Division.
      v.
                                               No. 3:12-cv-236
UNITED STATES OF AMERICA,
     Respondent-Appellee.                      Robert L. Miller, Jr.,
                                               Judge.


                                      ORDER

       Jermel Thomas pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1). He was sentenced to 120 months’ imprisonment, the statutory maximum.
We dismissed his direct appeal on the basis of the appeal waiver in his plea agreement.
See United States v. Thomas, 639 F.3d 786 (7th Cir. 2011). Thomas has now moved under
28 U.S.C. § 2255 to attack collaterally his conviction and sentence. The district court


      *
        After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See Fed. R. App. P.
34(a)(2)(C).
No. 13-3361                                                                       Page 2

denied the motion but certified two issues for our review—ineffective assistance of
counsel and judicial fact-finding. Thomas asks that we also certify for review three more
issues. The district court correctly decided the two certified issues, and we decline to
certify the other three. We therefore affirm the judgment of the district court.

       Thomas was involved in a shootout in 2009, and he later pleaded guilty to
possessing a firearm as a felon. A DNA test of a revolver recovered from the crime scene
revealed Thomas’s DNA on the trigger. Represented by Jay Stevens, a federal defender,
Thomas signed a written plea agreement stating that he knowingly possessed the
recovered revolver. Likewise, during his plea colloquy Thomas swore that he was guilty
of possessing the gun. Thomas tells us now that, before he entered his guilty plea,
Stevens had advised him that by pleading guilty his use of the gun during the shooting
would not be an issue at sentencing. At the plea hearing, though, Thomas swore that he
had received no sentencing predictions and he understood that, as the court had
explained, the court could sentence him differently than he might expect, up to the
statutory maximum of 10 years.

       About a month after the plea was accepted, but before sentencing, Jay Stevens
moved to withdraw as counsel because he had just learned of a conflict of interest: A
fellow federal defender in the same office was representing another man involved in the
shootout, and the two defenders had acquired information that would benefit one client
at the expense of the other. The motion was granted, and William Stevens (no relation)
was appointed to represent Thomas.

       William Stevens represented Thomas at sentencing, where Thomas’s use of the
gun was litigated. The probation office recommended that Thomas’s offense level be
increased by four levels under U.S.S.G. § 2K2.1(b)(6) because Thomas had “used or
possessed” a firearm in connection with “another felony.” Counsel objected to the
enhancement for two reasons. First, counsel argued that the proposed increase was
unconstitutional because the felonies (state-law battery and criminal recklessness) were
uncharged and unproven to a jury. Second, counsel contended, Thomas did not qualify
for the enhancement because he did not commit another felony. Thomas testified at
sentencing that someone had handed him a gun at the shootout, but he held it only
momentarily before giving it back unfired. And a forensics consultant opined, from
examining the residue on Thomas’s jacket, that it was unlikely that Thomas had fired a
gun. The government rebutted this evidence with a witness to the shootout who testified
that Thomas had shot him, and by objecting to the forensic report because its author was
not qualified and chain-of-custody problems with the jacket undermined the report’s
No. 13-3361                                                                          Page 3

conclusions. The district court admitted the report but disbelieved Thomas’s assertion at
sentencing that he had not fired the gun. The court then ruled that, because Thomas’s
sentencing testimony contradicted his plea-colloquy testimony by downplaying his
responsibility for possessing the gun, the court would add two more offense levels for
obstruction of justice, see U.S.S.G. § 3C1.1, in addition to the four-level enhancement
under U.S.S.G. § 2K2.1(b)(6) for use or possession of a gun in connection with another
felony. The enhancements pushed Thomas’s guideline range up to a single point—the
statutory maximum of 120 months, as allowed by U.S.S.G. § 5G1.1(a). That is the
sentence he received.

        On appeal from the district court’s denial of the motion to vacate his sentence, we
begin with the two issues that the district court certified. Thomas first argues that Jay
Stevens rendered ineffective assistance when he advised Thomas that his use of a gun
would not affect his sentence. The district court correctly observed, however, that an
inaccurate sentencing prediction alone is not deficient performance, see Bridgeman v.
United States, 229 F.3d 589, 592 (7th Cir. 2000); United States v. Barnes, 83 F.3d 934, 940
(7th Cir. 1996), and even if it were, prejudice is missing for two reasons. First Thomas
acknowledged to the court that, despite any predictions Stevens may have made,
Thomas understood that he could receive a sentence up to the 120-month statutory
maximum. Second, the enhancement to his guideline range for obstruction was the
result not of using the gun but of Thomas’s decision to lie about it at the sentencing
hearing. See Wyatt v. United States, 574 F.3d 455, 458–59 (7th Cir. 2009); Bethel v. United
States, 458 F.3d 711, 718–19 (7th Cir. 2006); United States v. Martinez, 169 F.3d 1049, 1054
(7th Cir. 1999).

        Thomas replies that he is not challenging Stevens’s forecast about the sentence’s
length. Rather, he is contesting Stevens’s failure to warn him that the judge could find by
a preponderance of evidence that he possessed or used the gun while committing a
felony and then increase his sentence on that basis. Had Thomas received this advice, he
concludes, he would not have pleaded guilty. But this gloss on Thomas’s argument fares
no better. Even if we assume that Jay Stevens should have told Thomas about judicial
fact-finding at sentencing, Thomas must still furnish evidence that, with the correct
advice, he would likely have proceeded to trial. See Hill v. Lockhart, 474 U.S. 52, 58–59
(1985); Hutchings v. United States, 618 F.3d 693, 697 (7th Cir. 2010); United States v.
Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005). He has not. To the contrary, the combination
of his DNA on the gun and the witness who saw him use it constitutes “evidence
proving the charged conduct”—possession of a firearm—and that evidence “was
sufficient to ensure that no advantage would be gained by proceeding to trial.” United
No. 13-3361                                                                             Page 4

States v. Rodriguez-Luna, 937 F.2d 1208, 1214–16 (7th Cir. 1991). Accordingly Thomas has
not shown prejudice.

        We turn to the second certified issue. Thomas argues that the factual predicate for
enhancing his guideline range—that he possessed or used a firearm while committing
another felony—must, under Alleyne v. United States, 133 S. Ct. 2151 (2013), be proven to
a jury beyond a reasonable doubt. We have not yet ruled whether Alleyne applies
retroactively to cases on collateral review, see Simpson v. United States, 721 F.3d 875, 876
(7th Cir. 2013), though other circuits have ruled that it does not, see Butterworth v. United
States, 775 F.3d 459, 465 & n.4 (1st Cir. 2015) (citing cases), cert denied, No. 14-8251,
2015 WL 459339 (U.S. Mar. 2, 2015). But as the district court correctly observed, we have
ruled that Alleyne does not require that facts that merely increase an advisory guideline
range, as happened here, be found by a jury. See United States v. Volpendesto, 746 F.3d 273,
296 n.8 (7th Cir. 2014); United States v. Hernandez, 731 F.3d 666, 672 (7th Cir. 2013).
Accordingly, Thomas’s second claim fails.

       That brings us to the three requests to expand the certificate of appealability. First,
Thomas contends that because of Jay Stevens’s conflict of interest, he rendered
ineffective assistance. Even if we assume that a conflict arose, the claim requires an
additional showing. Either the conflict must have had an “adverse effect” on Jay
Stevens’s representation (a reasonable likelihood that Stevens’s performance would
have differed without the conflict), see Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Blake v.
United States, 723 F.3d 870, 880 (7th Cir. 2013), cert. denied, 134 S. Ct. 2830 (2014), or the
conflict must have prejudiced Thomas (a reasonable probability that, with the conflict
removed, Thomas would not have pleaded guilty), see Hall v. United States, 371 F.3d 969,
975–76 (7th Cir. 2004); Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003). But Thomas has
offered no evidence of either. Stevens moved to withdraw as soon as he learned that he
and his fellow defender possessed information that could undermine one of their clients.
Therefore Stevens’s advice to Thomas, all of which he rendered before the conflict
emerged, was not affected by the conflict. Thomas replies with conclusory allegations of
prejudice, but these are insufficient to show either an adverse effect or prejudice from the
conflict. See Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005) (noting that petitioner
must support assertion of prejudice with specific evidence); Cieslowski, 410 F.3d at 359
(same). He has thus failed to make “a substantial showing of the denial of a
constitutional right.” Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009).

      Next, Thomas asks that we expand the certificate to include a claim that Jay
Stevens rendered ineffective assistance by failing to communicate an earlier plea offer
No. 13-3361                                                                           Page 5

that was more favorable than the one Thomas later accepted. The record contains no
proof to support this allegation. Thomas has appended to his appellate brief (and he
unsuccessfully asked the district court to add to the record) emails showing
communications between Jay Stevens and the prosecutor discussing the possibility of a
plea deal. But even if we could consider the emails, they do not contain the terms of an
earlier plea offer, let alone a more favorable one. Accordingly, Thomas has not made a
substantial showing of prejudice in the form of a more favorable outcome from an
uncommunicated plea. See Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012).

        The third issue that Thomas asks us to certify is whether Jay Stevens rendered
ineffective assistance by advising him to plead guilty without having first done three
things: interview certain witnesses, discuss with him a preliminary report (different
from the one later admitted) that gunshot residue on Thomas’s jacket was of uncertain
origin, and preserve the jacket. To succeed on this claim, Thomas would have to show
that, had Stevens taken these omitted steps, (1) a recommendation to plead not guilty
would have been reasonable, see Warren v. Baenen, 712 F.3d 1090, 1097 (7th Cir. 2013);
(2) Thomas would likely have accepted that recommendation, see Hill, 474 U.S. at 58–59;
and (3) a not-guilty trial verdict would have been reasonably likely, see id. at 59. He has
not. To begin, the record suggests that Stevens attempted to contact these witnesses, so
Thomas’s claim that Stevens’s performance was deficient on this front is not
substantiated. In any case Thomas cannot show prejudice. Acquittal was not reasonably
likely because Thomas’s DNA was found on the gun recovered at the crime scene
(establishing possession) and another participant in the shootout testified at sentencing
that Thomas shot him in the foot (confirming possession). Furthermore, no prejudice
resulted from Stevens’s failure to discuss the preliminary test results about the jacket. A
completed forensic report was introduced at sentencing over the government’s
objections and it opined—in Thomas’s favor—that it was unlikely Thomas fired a gun
while wearing the jacket. Finally, because of the chain-of-custody problems with the
jacket, preserving the jacket for additional testing likely would not have done Thomas
any more good. Thus we decline to certify this issue.

       Finally, Thomas argues that the district court should have held an evidentiary
hearing on each issue he asks us to certify. But no material factual disputes arose to
warrant an evidentiary hearing, so the district court did not abuse its discretion in
declining to conduct one. See Hutchings, 618 F.3d at 699–700; Galbraith v. United States, 313
F.3d 1001, 1009 (7th Cir. 2002).
No. 13-3361                                                                   Page 6

      Accordingly, the district court’s denial of Thomas’s § 2255 motion is AFFIRMED,
and his request to expand the certificate of appealability is DENIED.
