                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-3269
                                ________________

Shon Lamar Sanders,                       *
                                          *
             Appellant,                   *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Eastern District of Missouri.
United States of America,                 *
                                          *
             Appellee.                    *

                                ________________

                                Submitted: April 15, 2003
                                    Filed: September 3, 2003
                                ________________

Before BYE, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

       Shon Lamar Sanders' first trial resulted in a hung jury and a mistrial. He was
retried and convicted of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1); possessing cocaine base with intent to distribute, in violation of
21 U.S.C. § 841(a)(1); and carrying a firearm during and in relation to drug
trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Sanders was sentenced to 175
months in prison, consisting of concurrent 115-month prison terms for the felon-in-
possession and drug convictions, and a mandatory consecutive 60-month prison term
for the conviction for carrying a firearm during and in relation to drug trafficking.
       Sanders filed a 28 U.S.C. § 2255 motion, alleging ineffective assistance of trial
counsel. The district court1 denied the motion without an evidentiary hearing but
granted a certificate of appealability. On appeal, Sanders advances one argument:
trial counsel misadvised him about his sentencing exposure if he accepted the
government's plea offer and his sentencing exposure if he was found guilty at trial,
which caused him to proceed to trial and receive a longer sentence than he would
have received if he had pleaded guilty. For the reasons discussed below, we affirm
the judgment of the district court.

                                           I.

       A defendant who claims that he received ineffective assistance of trial counsel
has the burden to show both that counsel's performance was deficient--i.e., that "the
identified acts or omissions were outside the wide range of professionally competent
assistance" despite the "strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance"--and that the defendant suffered
prejudice--i.e., "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 689-90, 694 (1984). When the defendant's
claim is that counsel misadvised him of the relative advantages of pleading guilty
rather than proceeding to trial, in order to show prejudice, the defendant "must show
that, but for his counsel's advice, he would have accepted the plea." Engelen v.
United States, 68 F.3d 238, 241 (8th Cir. 1995).

       A § 2255 motion "can be dismissed without a hearing if (1) the petitioner's
allegations, accepted as true, would not entitle the petitioner to relief, or (2) the
allegations cannot be accepted as true because they are contradicted by the record,


      1
        The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
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inherently incredible, or conclusions rather than statements of fact." Id. at 240. To
avoid dismissal, "the movant must present some credible, non-conclusory evidence
that he would have pled guilty had he been properly advised." Id. at 241.

                                          II.

       It is undisputed that the government orally offered to allow Sanders to plead
guilty to the charge of carrying a firearm during and in relation to drug trafficking.
In return, the government would have dismissed the other charges. It is also
undisputed that Sanders' trial counsel conveyed this plea offer to Sanders, who
rejected it. (Had Sanders accepted this plea offer, he would have been sentenced to
60 months in prison, the mandatory statutory penalty.)

       In the proceedings below, Sanders' trial counsel submitted an affidavit which
describes the advice he provided about the plea offer. Counsel told Sanders at least
twice that he would face a range of 36-48 months in prison if he pleaded guilty, and
a range of 108-120 months in prison if he was found guilty at trial. Sanders has not
submitted any affidavits or other evidence of his own. Rather, he rests on the
inaccuracy of counsel's estimates: Sanders actually would have been sentenced to 60
months in prison if he had accepted the plea offer, while his Guidelines imprisonment
range, after being found guilty at trial, was 92-115 months for the felon-in-possession
and drug convictions, plus the mandatory consecutive 60-month prison term for the
conviction for carrying a firearm during and in relation to drug trafficking.

      We do not disagree with Sanders that the record shows he was misadvised
about his sentencing exposure. However, we fail to see how trial counsel's inaccurate
advice would have made Sanders any less likely to accept the plea offer than he
would have been if he had received accurate advice. First, Sanders was advised that
by pleading guilty, he would limit his exposure to 36-48 months in prison, which is
a more enticing prospect than the 60 months in prison he would have been told he

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faced if counsel had accurately explained the plea offer. Second, trial counsel's
inaccurate numbers nonetheless accurately conveyed the concept that by pleading
guilty, Sanders would limit his exposure to about one-third of the sentence he would
face if found guilty at trial.2 Thus, on this point, we conclude that Sanders' assertion
that he would have accepted the government's plea offer but for trial counsel's
erroneous advice is either "contradicted by the record" or "inherently incredible" in
light of the record. See Engelen, 68 F.3d at 240.

      Trial counsel's affidavit also describes his impressions of Sanders'
unwillingness to consider pleading guilty. According to counsel, Sanders always
expressed a desire to proceed to trial, and none of counsel's discussions about the
possibility of a guilty plea seemed to sway him. Sanders has not submitted any
affidavits or other evidence of his own. Rather, he rests on his assertion that he
would have changed his mind and pleaded guilty if only he had been advised
correctly about his sentencing exposure.

       The record appears to corroborate counsel's impressions rather than Sanders'
assertion: Sanders denied his guilt at the time of his arrest, he testified at his first trial
that he was completely innocent, and he failed to raise at his sentencing hearing any
of the concerns raised in his § 2255 motion. A defendant who maintains his
innocence at all the stages of his criminal prosecution and shows no indication that
he would be willing to admit his guilt undermines his later § 2255 claim that he

       2
        Under counsel's inaccurate figures of 36-48 months for a guilty plea versus
108-120 months for convictions at trial, Sanders would have limited his exposure by
pleading guilty to 30-44% of the prison sentence he faced if found guilty at trial.
Under the correct figures of 60 months for a guilty plea versus 152-175 months for
convictions at trial, Sanders would have limited his exposure by pleading guilty to
34-39% of the prison sentence he faced if found guilty at trial. The percentages under
counsel's numbers were close enough to the percentages under the correct numbers
to give Sanders an accurate idea of the extent to which he could reduce his sentencing
exposure by pleading guilty.
                                              4
would have pleaded guilty if only he had received better advice from his lawyer. See,
e.g., United States v. Stevens, 149 F.3d 747, 748 (8th Cir.), cert. denied, 525 U.S.
1009 (1998); Engelen, 68 F.3d at 241. Thus, on this point, we conclude that Sanders
has failed to meet his burden to "present some credible, non-conclusory evidence that
he would have pled guilty had he been properly advised." See id.

                                        III.

      For the reasons stated above, we conclude that Sanders has not shown that he
received ineffective assistance of trial counsel within the meaning of Strickland.
Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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