           Case: 15-14717   Date Filed: 05/26/2017   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14717
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:14-cv-60783-WJZ



RICARDO BIGIO,

                                                      Petitioner - Appellant,

                                  versus

FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                      Respondents - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 26, 2017)

Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ricardo Bigio appeals the district court’s denial of his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. On appeal, Bigio argues that the

district court erred in concluding that he was not prejudiced by his counsel’s failure

to inform him that a proposed plea agreement—which Bigio rejected—included no

fine and would render him potentially eligible for release after serving 85% of his

sentence. After careful review, we affirm the district court’s judgment.

                               I.      BACKGROUND

      After law enforcement officials found 168 grams of heroin (among other

contraband) in Bigio’s car, the State of Florida charged him with trafficking in

heroin in violation of Florida Statutes §§ 893.135(1)(c) and 893.03(1)(b)(11),

possession of drug paraphernalia in violation of Florida Statutes § 893.147(1)¸

driving with a suspended license, possession of more than one driver’s license, and

possession of Viagra without a valid prescription. The possession of Viagra charge

was eventually dropped. A conviction under § 893.135(1)(c) for trafficking more

than 28 grams but less than 30 kilograms of heroin carries a 25-year mandatory

minimum sentence and a required fine of $500,000. Fla. Stat.

§ 893.135(1)(c)(1)(c).

      Bigio was represented by attorney Louis Casuso. Before proceeding to trial

on the four remaining charges, the government offered Bigio a plea agreement for

a 15-year prison sentence. Bigio rejected the offer. During a colloquy, Bigio


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informed the trial court that he had rejected the government’s offer. The court

asked Bigio if he knew that a conviction on the heroin trafficking charge could

result in a 30-year sentence, with a 25-year mandatory minimum. Bigio said yes

and reaffirmed that he wanted to reject the offer and proceed to trial. After

ensuring that Bigio understood the penalties associated with the other charges, the

court asked Bigio if he had an opportunity to discuss the plea agreement with his

attorney. Bigio said yes, and again affirmed that he wanted to reject the offer and

proceed to trial.

      Bigio’s first trial ended in a mistrial. Before his second trial, the trial court

conducted another colloquy regarding the plea offer. Bigio again told the court

that he understood he was facing a 25-year mandatory minimum sentence and a

30-year maximum sentence, he had discussed the agreement with his attorney, and

he wanted to reject the offer and go to trial. The jury convicted Bigio on all counts

at the second trial, and the court sentenced him to a 25-year mandatory minimum

term of imprisonment on the heroin trafficking charge.

      After an unsuccessful direct appeal, Bigio filed a pro se motion for

postconviction relief under Florida Rule of Criminal Procedure 3.850, asserting 15

separate grounds for relief. One such ground was that Casuso was constitutionally

ineffective because he failed to accurately and fully inform Bigio about the

government’s plea offer. According to the motion, Casuso failed to inform Bigio


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that the 15-year sentence he would have received under the plea agreement was not

a “mandatory minimum” sentence, which meant that Bigio would have been

eligible for release after serving 85% of his sentence and could receive 10 days of

“good time” credit per month of time served. In Bigio’s view, had he accepted the

plea agreement, he would have been eligible for release after 12 years. The motion

further alleged that Casuso failed to inform Bigio that the plea offer would have

been for a second degree felony with no mandatory minimum sentence and that the

fine he would have faced under the plea was $50,000 as opposed to $500,000.

Bigio argued that had he known of these aspects of the plea agreement, he would

have accepted it instead of risking a much longer sentence by proceeding to trial.

      The State responded that there was no evidence that the offer made to Bigio

included a reduction of the charge or the associated fine, explaining that “[t]he

prosecutor simply made an offer of a prison term below the mandatory minimum

sentence for this offense.” The State argued that Bigio knowingly rejected the

offer even having been informed of the 25-year mandatory minimum he faced by

going to trial. The postconviction court denied relief for the reasons contained in

the State’s response without conducting an evidentiary hearing. On appeal, the

postconviction court’s denial was summarily affirmed.

      Bigio subsequently filed a pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Among other claims, Bigio again argued that


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Casuso provided ineffective assistance of counsel by failing to inform him that

under the plea agreement he could have been released after serving 85% of his

sentence, would have faced a second rather than first degree felony, and would

have been subject to a $50,000 fine as opposed to a $500,000 fine. The petition

was referred to a magistrate judge who determined that an evidentiary hearing was

necessary to assess that claim. The magistrate judge appointed counsel to

represent Bigio.

       At the evidentiary hearing, Bigio testified that Casuso informed him that he

was facing a mandatory minimum sentence of 25 “calendar years” on the heroin

trafficking charge. Bigio took Casuso’s advice to mean that he would have to

serve each day of his sentence if convicted. Casuso also informed Bigio that he

was facing a $500,000 fine. According to Bigio, Casuso failed to tell him anything

about the prosecution’s plea offer except that it was for 15 years. Bigio took that

to mean that he would have to serve each day of the 15 year sentence and would

still face a $500,000 fine. Bigio further testified that Casuso did not give him any

advice about accepting the offer because Casuso “was very strong about winning

th[e] case,” and that Casuso only gave him a short period of time—just before the

trial began—to mull the offer over. Evidentiary Hr’g. Tr., Doc. 35 at 10-11.1



       1
          Citations to “Doc. __” refer to numbered docket entries in the district court record in
this case.
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      Bigio testified that he would have faced 12 and one half years of

imprisonment had he accepted the 15-year agreement. He explained that he would

have accepted the plea agreement even if the fine remained at $500,000 had he

known that he would have been eligible for early release. Bigio further testified

that he had relied on Casuso’s advice to accept a plea agreement in a previous case.

      John Countryman, the prosecutor on Bigio’s case, testified for the State.

Countryman explained that he made a 15-year plea offer to Bigio via Casuso. As

part of the agreement, Countryman agreed to waive the 25-year mandatory

minimum sentence. Countryman never discussed the fine with Casuso. According

to Countryman, Casuso told him that Bigio was not interested in the plea

agreement. On cross-examination, Countryman testified that he did not intend the

15-year sentence pursuant to the plea be a “mandatory minimum” sentence that

would have precluded Bigio from being released before serving each day of his

sentence. Countryman further testified that he would have waived the fine as part

of the plea agreement, but that he never discussed the fine with Casuso because

Casuso told him Bigio was not interested in the plea offer.

      Casuso also testified for the State. He testified that he never discusses “gain

time”—the mechanism through which Bigio could have secured early release

under the plea agreement—with his clients, because it is discretionary and its

availability is subject to political whims. With regard to the fine, Casuso explained


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that he was aware that in this type of drug case, the fine imposed on a defendant

who accepts a plea agreement is always either waived or reduced to a nominal

amount—but he did not share this information with Bigio.

       Moreover, Casuso recalled that when Bigio rejected the plea, Bigio had

joined a church and “felt that God was with him, he was protecting him.” Id. at 33.

During the second trial, Casuso asked Bigio if he wanted to reconsider the plea

agreement, but Bigio was insistent on finishing the trial. Bigio never asked Casuso

about gain time or the possibility of a reduced fine. Casuso also testified:

       I think, during the second trial it came down to 12. I told him maybe
       you ought to think about this. You know, 12 years seems like a long
       time, unless you get 25. . . . He felt like he had a shot at the trial, so
       he didn’t take it.

Id. at 40.

       The magistrate judge rejected Bigio’s petition, determining that there was no

reasonable probability that Bigio would have accepted the plea offer had he known

about the lack of fine and possibility of early release. In doing so, the magistrate

judge relied on Casuso’s testimony that Bigio was convinced he could win at trial

and that Bigio rejected the possibility of a 12-year plea agreement. The magistrate

judge found Casuso to be credible and Bigio to be incredible to the extent his

testimony diverged from Casuso’s. Over Bigio’s objections, the district court

adopted the magistrate judge’s report and recommendation. A member of this

Court granted a certificate of appealability to consider whether the district court
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erred in denying Bigio’s claim that counsel was constitutionally ineffective for

failing to accurately and fully inform Bigio about the plea offer.



                            II.    STANDARD OF REVIEW

       The district court’s factual findings are reviewed for clear error, but the

ultimate ineffective assistance of counsel inquiry is a mixed question of fact and

law that we review de novo. Nejad v. Att’y. Gen., Ga., 830 F.3d 1280, 1288 (11th

Cir. 2016). We will reverse a factual finding for clear error only when we are left

with a definite and firm conviction that a mistake has been committed. United

States v. Thomas, 818 F.3d 1230, 1239 (11th Cir.), cert. denied, 137 S. Ct. 171

(2016). A district court’s choice between two permissible views of the evidence

cannot be clear error. United States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir.

2006). 2

                                    III.   DISCUSSION

       To succeed on an ineffective assistance of counsel claim, “the petitioner has

to show both that his counsel’s performance was deficient and that that deficient

performance was prejudicial—that is, that there is a ‘reasonable probability that,


       2
          Although Bigio filed his petition for relief pursuant to 28 U.S.C. § 2254, we need not
conduct this ineffective assistance of counsel inquiry through the deferential lens of § 2254(d).
The magistrate judge determined that the state court’s decision denying Bigio relief was contrary
to clearly established federal law. That conclusion permitted the district court to determine, de
novo, whether Bigio’s constitutional rights were violated. The State does not appeal the
determination that the state court’s decision was contrary to clearly established federal law.
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but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’” Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1284

(11th Cir. 2016) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

We need not address both prongs of the Strickland test if the petitioner has made

an insufficient showing on one of them. Dell v. United States, 710 F.3d 1267,

1274 (11th Cir. 2013).

      To show deficient performance, “the defendant must demonstrate that

counsel made errors so serious that he was not functioning as counsel guaranteed

by the Sixth Amendment.” Osley v. United States, 751 F.3d 1214, 1222 (11th Cir.

2014). “There is a strong presumption that counsel’s conduct fell within the range

of reasonable professional assistance, and, therefore, counsel’s performance is

deficient only if it falls below the wide range of competence demanded of lawyers

in criminal cases.” Id.

      Where the probable consequence of a plea agreement is particularly

impactful or severe—for example, a high probability of deportation—a criminal

defendant has a constitutional right to be informed of the consequence by counsel.

See Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (“The severity of deportation—

the equivalent of banishment or exile— . . . underscores how critical it is for

counsel to inform her noncitizen client that he faces a risk of deportation.” (citation

and internal quotation marks omitted)). Nonetheless, we have held that there is no


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constitutional requirement that counsel inform a criminal defendant of each aspect

of a potential sentence. See Osley, 751 F.3d at 1226 (“[C]ounsel’s failure to

inform Osley of the life term of supervised release was not so deficient as to

deprive him of his Sixth Amendment right to counsel.”).

      Here, Casuso’s failure to advise Bigio of the possibility of gain time was

well within the range of reasonable professional assistance. Casuso testified that

he never discusses gain time with his clients because it is discretionary and its

availability is subject to political whims. Casuso’s desire to avoid potentially

misleading his clients into believing they will be eligible for early release was

reasonable. Indeed, we have held that under certain circumstances, an attorney

provides ineffective assistance of counsel when he erroneously advises his client

that accepting a plea agreement will result in a more favorable outcome than the

agreement can possibly guarantee. See, e.g., Finch v. Vaughn, 67 F.3d 909, 916

(11th Cir. 1995) (holding that counsel was constitutionally ineffective where he

erroneously advised his client that accepting a plea agreement on state charges

ensured that his sentence would run concurrent to any federal sentence he might

receive for the same conduct). Casuso’s reasoned decision to decline to discuss




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gain time with Bigio was therefore within the wide range of competence demanded

of lawyers in criminal cases.3

       Given Casuso’s testimony that he was aware the prosecution would waive

the fine if Bigio accepted the plea offer, however, Casuso’s failure to inform Bigio

that he would have faced no fine or a substantially reduced fine under the plea

agreement arguably might have constituted deficient performance. But we need

not decide that issue because Bigio suffered no prejudice from Casuso’s alleged

deficiency. In the context of a rejected plea agreement, to establish prejudice, the

petitioner must show a reasonable probability that:

       (1) 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); (2) the
       court would have accepted its terms; and (3) 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.

Osley, 751 F.3d at 1222 (internal quotation marks omitted).

       Bigio’s claim with regard to the fine fails the first prong of this test. The

record convincingly demonstrates that there was no reasonable probability that

Bigio would have accepted the State’s offer had he known that he would not have

faced a fine. The record indicates that although Bigio was aware that he was

       3
          To the extent Bigio argues that Casuso provided ineffective assistance by failing to
inform him that the plea offer was for a lesser charge, Bigio’s claim is meritless. The record
contains no support for the proposition that Countryman intended to allow Bigio to plead guilty
to a lesser charge. To the contrary, Countryman testified that his offer still required Bigio to
plead guilty to first degree heroin trafficking.
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facing a $500,000 fine if convicted, he never asked Casuso whether the 15-year

plea offer included a fine. Moreover, at the evidentiary hearing, Bigio asserted that

he would have accepted a plea agreement had he been informed about his

eligibility for gain time, even if the fine remained at $500,000. By contrast, there

is no corresponding evidence in the record suggesting that he would have accepted

a plea agreement had he been told that his fine would be reduced but not been

informed of his eligibility for gain time. Further, Casuso testified that after he

informed Bigio of the 15-year offer, Bigio was insistent on proceeding to trial

because he felt that he would be acquitted and God was protecting him. 4 The

record contains no evidence suggesting that the possibility of a reduced fine would

have changed Bigio’s mind. The district court therefore properly rejected Bigio’s

ineffective assistance claim as it pertains to the fine.

                                   IV.     CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.

       AFFIRMED.




       4
          Although the magistrate judge found, based on Casuso’s testimony, that Bigio was
unwilling to consider the possibility of a 12-year plea agreement, we do not rely on the existence
of or discussions concerning any such agreement in assessing Bigio’s petition.
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