                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 10-15506             OCTOBER 26, 2011
                                        Non-Argument Calendar           JOHN LEY
                                      ________________________           CLERK


                           D.C. Docket Nos. 2:07-cv-08020-LSC-PWG,
                                  2:05-cr-00523-LSC-PWG-1


FRANK C. BAIRD, II,

llllllllllllllllllllllllllllllllllllllll                            Petitioner-Appellant,

                                                  versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.
                                      ________________________

                           Appeal from the United States District Court
                              for the Northern District of Alabama
                                  ________________________

                                           (October 26, 2011)

Before CARNES, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Federal prisoner Frank C. Baird, II, is serving a 1,190-month sentence after

pleading guilty to possession, production, and transportation of child pornography
and to traveling in interstate commerce for the purpose of engaging in illicit sexual

conduct with a minor. Proceeding pro se and claiming that his counsel provided

ineffective assistance in violation of his Sixth Amendment right, Baird appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentences. Specifically, Baird argues that counsel failed to adequately

explain a clause in Baird’s plea agreement because counsel was unfamiliar with

parts of the relevant law. As a result, Baird says he was not in a position to

knowingly, intelligently, and voluntarily accept the plea agreement in which he

waived his right to ask the court to impose a sentence below the advisory

guideline range.1 Counsel’s failure, Baird asserts, not only met the standard for

deficient performance. But it also prejudiced him by precluding him from

challenging an unreasonably lengthy and severe sentence. After a thorough

review of the record and the parties’ briefs, we affirm Baird’s convictions.

       In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and its factual findings for clear error. Rhode v. United

States, 583 F.3d 1289, 1290 (11th Cir. 2008). We review claims for ineffective



       1
         While the Certificate of Appealability (“COA”) refers to “waivers” in the plural, the only
waiver Baird discusses in his brief is the waiver of the right to argue for a below-guideline total
sentence under § 3553. Therefore, even though Baird is a pro se litigant on appeal, the issue of
any other waiver in the plea agreement as to which counsel may have been ineffective has been
abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also
Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994).

                                                2
assistance of counsel de novo as a mixed question of law and fact. Michael v.

Crosby, 430 F.3d 1310, 1318 (11th Cir. 2005).

        Generally, when a conviction is based on a guilty plea, the defendant waives

all nonjurisdictional challenges, including those of a constitutional nature. Wilson

v. United States, 962 F.2d 996, 997 (11th Cir. 1992). This rule applies equally to

direct appeal and collateral attack: a § 2255 movant who entered a valid guilty

plea waives any pre-plea ineffective assistance claims that do not concern his

decision to enter the plea. See id. However, insofar as the movant challenges the

knowing and voluntary nature of the plea, as Baird does here, collateral attack is

permitted. See id.

        To make a successful claim of ineffective assistance of counsel, a defendant

must meet a two-pronged test. He must show that: (1) counsel’s performance was

deficient; and (2) the deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Both parts of the

test must be met. If a defendant cannot satisfy the performance prong, a court

does not need to address the prejudice prong, and vice versa. Michael, 430 F.3d at

1319.

        Baird argues that he satisfies the deficient performance prong because his

attorney, Jonathan Wesson, failed to adequately explain the following clause of his

plea agreement: “Should the defendant ask the court to impose a sentence below

                                          3
the advisory guideline range on any basis, including but not limited to factors in

18 U.S.C. § 3553, the government will consider this agreement null and void.”

The record reveals that Wesson’s failure to explain this clause properly prior to

Baird’s acceptance of the plea agreement stemmed from Wesson’s unfamiliarity

with 18 U.S.C. § 3553, which mandates that a court not impose a sentence “greater

than necessary” to achieve a number of important purposes, such as, inter alia,

promoting respect for the law, providing just punishment for the offense, and

protecting the public from further crimes by the defendant. See 18 U.S.C. §

3553(a). As a result of Wesson’s explanatory failure, Baird asserts, Baird

“unknowing[ly]” waived his right to ask the court for a sentence below what the

sentencing guidelines advised, essentially giving both the court and the

government free rein to “do as they wish[ed] with” him, “with no possibility of

objection.” For this reason, insists Baird, Wesson’s performance was

constitutionally deficient.

      An evidentiary hearing was held to ascertain the validity of Baird’s § 2255

claims. This evidentiary hearing resulted in the district court finding that, while

Wesson failed to explain the § 3553 factors to Baird, Wesson did tell Baird

repeatedly at every stage of the proceeding that he would likely receive a life

sentence if he accepted the plea agreement. Beyond this, nothing prohibited

Baird’s sentencing court from imposing a below-guideline sentence on its own. In

                                          4
addition, the district court adopted the magistrate judge’s conclusion both

disputing Baird’s claims regarding what Wesson told him about sentencing and

designating Baird “an astoundingly unbelievable witness.”

      We refrain from determining here whether Wesson’s failure to explain the

law underlying federal sentencing policy thoroughly to Baird constituted deficient

performance falling outside the “wide range” of professionally competent

assistance. Payne v. Allen, 539 F.3d 1297, 1317 (11th Cir. 2008) (quotation

marks omitted). Determining that issue is unnecessary because, regardless of

whether there was deficient performance on the part of his counsel, Baird has

failed to satisfy the second prong of the Strickland test. That is, he has not shown

that counsel’s failure to explain § 3553 in the context of the plea agreement

prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Consequently, we hold that Baird is not entitled to relief.

      Baird contends that had counsel informed him of his ability to challenge a

particularly severe sentence using the § 3553 factors, he would have never entered

into the plea agreement that waived his right to ask for a below-guideline sentence

based on those factors. For this reason, Baird claims, counsel’s failure to explain

the § 3553 factors in the context of the plea agreement caused him to suffer

prejudice.

      However, the district court, whose factual findings we adopt in the absence

                                          5
of clear error, see United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)

(“Under the clearly erroneous standard, we must affirm the district court unless

review of the entire record leaves us with the definite and firm conviction that a

mistake has been committed.” (quotation marks omitted)), determined that the

factual premises of this argument were invalid. First, it found that, contrary to

Baird’s assertions, Baird understood that “he was almost certain to receive a life

sentence” when he pleaded guilty. Second, the district court found that, with both

a conviction and life sentence likely, Baird’s primary concern in negotiating a plea

agreement was limiting the government’s ability to forfeit his property. This aim

was achieved through the final plea agreement, which left Baird’s home and farm

untouched. Accepting these factual findings, particularly that Baird’s decision to

plead guilty was driven by a desire to protect his home and farm and was

undertaken with the knowledge that a life sentence was likely, we conclude that

there is no reasonable probability that counsel’s provision of full and correct

information regarding § 3553 would have altered Baird’s decision to plead guilty.

Under the circumstances, Baird had ample motivation to accept the plea and save

his property. And by failing to show a “reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial,” Gordon v. United States, 518 F.3d 1291, 1297 (11th Cir. 2008)

(quotation marks omitted), we hold that Baird has failed to meet his burden under

                                          6
the prejudice prong of the Strickland test.

      This conclusion draws further support from the sweeping language of the

waiver provision in the plea agreement at issue here. Specifically, that provision

precludes Baird from “ask[ing] the court to impose a sentence below the advisory

guideline range on any basis, including but not limited to factors in 18 U.S.C. §

3553.” (Emphasis added.) While he may not have understood § 3553, Baird does

not dispute that he knew that he was waiving his right to argue for a below-

guideline sentence “on any basis” when he entered the plea. Thus, the plain

language of this waiver buttresses our conclusion that a specific explanation

regarding the § 3553 factors would not have made a difference here.

      Because he was not prejudiced by any deficiencies in his representation, we

hold that Baird entered his plea of guilty knowingly and voluntarily. Accordingly,

we affirm.

      AFFIRMED.




                                          7
