     Case: 09-50758 Document: 00511461347 Page: 1 Date Filed: 04/29/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 29, 2011

                                       No. 09-50758                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

BARRY CHARLES DOCKERY,

                                                   Defendant - Appellant




                 Appeal from the United States District Court for
                           the Western District of Texas
                               No. 1:06-cr-148-ss-1


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Barry Charles Dockery appeals the district court’s denial of his 28 U.S.C.
§ 2255 petition, arguing that his trial counsel’s failure to inform him of the
Sentencing Guidelines’ two-level reduction in offense level for acceptance of
responsibility was constitutionally deficient. Because Dockery cannot show
prejudice from his counsel’s alleged failure to inform him of the Guidelines
provision, the district court’s ruling is AFFIRMED.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 09-50758 Document: 00511461347 Page: 2 Date Filed: 04/29/2011



                                  No. 09-50758

I.    FACTS AND PROCEEDINGS
      On June 20, 2006, Dockery was indicted on the following counts: (1)
possession of a firearm by a felon; (2) unlawful possession of an unregistered
firearm; (3) possession of a firearm in furtherance of a drug trafficking crime; (4)
conspiracy to distribute and to possess with intent to distribute marijuana and
cocaine base (crack cocaine); (5) possession of crack cocaine with intent to
distribute; and (6) possession of marijuana with intent to distribute. Dockery’s
case proceeded to trial, and on November 7, 2006, a jury found Dockery guilty
on all counts.
      The district court sentenced Dockery on January 19, 2007. The
presentence report (PSR) calculated that Dockery was responsible for the
equivalent of 1,137.04 kilograms of marijuana, resulting in a total offense level
of 32 under the Sentencing Guidelines. It also calculated that his prior felony
convictions warranted a Criminal History Category of VI under the Guidelines.
Based on an offense level of 32 and a Criminal History Category of VI, Dockery’s
Sentencing Guidelines range was 210 to 262 months. The district court adopted
the PSR’s calculations and sentenced Dockery to concurrent statutory maximum
terms of 240 months for Counts Four and Five, 120 months for Counts One and
Two, and 60 months for Count Six.            It also sentenced him to a statutory
maximum term of 120 months for Count Three to be served consecutively to the
other counts, resulting in a total sentence of 360 months. On April 7, 2008,
pursuant to the retroactive amendments to the Sentencing Guidelines base
offense levels for crack cocaine offenses, the district court resentenced Dockery
to 210 months for Counts Four and Five, resulting in a total prison term of 330
months.
      Dockery filed a timely § 2255 motion asserting four ineffective assistance
of counsel claims and requesting an evidentiary hearing on his claims. Dockery
argued that his trial counsel, Russell Hunt, had rendered ineffective assistance

                                         2
    Case: 09-50758 Document: 00511461347 Page: 3 Date Filed: 04/29/2011



                                  No. 09-50758

by, among other things, failing to explain how the Sentencing Guidelines would
apply in his case. While Dockery’s brief primarily focused on how Hunt had
allegedly failed to explain the relevant conduct section of the Guidelines, it also
stated that Hunt failed to explain how “the acceptance of responsibility would
be used to mitigate his sentence.” In an affidavit attached to his § 2255 motion,
Dockery likewise asserted that Hunt failed to “explain to me the repercussions
of the guidelines, the application of the guidelines relevant conduct, nor [sic] the
application of the guidelines acceptance of responsibility sections.” He stated
that “[h]ad counsel taken the opportunity to explain to me the guidelines in even
the most basic term, [sic] I would have never proceeded to trial.” In response,
the Government submitted an affidavit by Hunt in which he stated:
      This allegation is patently false. I explained very clearly to Dockery
      as I do to all federal clients exactly how the USSG work, including
      [that] . . . the easiest way to decrease the sentence is through
      acceptance of responsibility by pleading guilty . . . [and] that he will
      be held accountable for all drug quantities for which there is some
      reliable evidence to establish that the client was involved in or that
      were reasonably forseeable to the client. . . . Dockery is very
      intelligent and clearly understood exactly how the USSG would
      operate in his case. His problem was that he held a delusional belief
      that he would win at trial, despite receiving advice strongly and
      explicitly to the contrary from each of his previous attorneys
      including me.
      The district court, without holding an evidentiary hearing, denied
Dockery’s motion. It concluded that Dockery had understood the risks of going
to trial because he had acknowledged that he understood the nature of the
charges and the maximum penalties. The court held that he could not show
prejudice from Hunt’s alleged failure to explain the Guidelines because he was
fully informed about the maximum penalty and chose to go to trial.
      Dockery filed a timely notice of appeal. This court granted Dockery a
certificate of appealability (COA) on whether Hunt “failed to explain the



                                         3
       Case: 09-50758 Document: 00511461347 Page: 4 Date Filed: 04/29/2011



                                   No. 09-50758

operation of the Sentencing Guidelines to Dockery (including the possibility of
a reduced sentence for acceptance of responsibility) rendering his decision to
proceed to trial rather than plead guilty uninformed” and whether the district
court should have held an evidentiary hearing on that claim.
II.     STANDARD OF REVIEW
        On review of a district court’s denial of § 2255 relief, we review factual
findings for clear error and legal conclusions de novo. United States v. Cavitt,
550 F.3d 430, 435 (5th Cir. 2008).
III.    DISCUSSION
        Dockery argues that Hunt rendered ineffective assistance by failing to
inform him about the Guidelines’ two-level reduction in offense level for
acceptance in responsibility. He asserts that he would have pleaded guilty if he
had known of the potential reduction and that he would have received a shorter
sentence if he had pleaded guilty.
        To prevail on his ineffective assistance of counsel claim, Dockery must
satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668,
687 (1984). “First, the defendant 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. Second, the defendant must show that the deficient performance
prejudiced the defense.” Id. “[T]o prove prejudice, the defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” United States v. Conley, 349
F.3d 837, 841 (5th Cir. 2003). “ ‘[A]ny amount of actual jail time has Sixth
Amendment significance,’ which constitutes prejudice for purposes of the
Strickland test.” Id. at 842 (citation omitted). In other words, Dockery must
show that there was a reasonable probability that he would have pleaded guilty
and that a guilty plea would have resulted in a shorter sentence. See Strickland,

                                         4
     Case: 09-50758 Document: 00511461347 Page: 5 Date Filed: 04/29/2011



                                      No. 09-50758

466 U.S. at 694; United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004)
(“Whether there was a reasonable probability that, but for [Grammas’s counsel’s]
actions, Grammas would have received a lesser sentence than he did turns on
first, whether Grammas would have pleaded guilty if he knew of the true
criminal penalty he faced, and second, whether a guilty plea would have indeed
reduced Grammas’s sentence.”).
       We need not address whether Hunt’s alleged failure to inform Dockery
about the acceptance of responsibility provisions of the Guidelines was
constitutionally deficient performance because Dockery cannot show that he was
prejudiced by Hunt’s alleged failure.1 Strickland, 466 U.S. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).
Because the district court did not make explicit findings of fact on Dockery’s
acceptance of responsibility argument, we assume for the sake of argument that
Hunt did not inform Dockery about this provision of the Guidelines and that
Dockery would have pleaded guilty if Hunt had informed him of this portion of
the Guidelines. Even given these assumptions, however, Dockery cannot show
prejudice because the record conclusively shows that it was not reasonably
probable that he would have received a shorter sentence as a result of his plea.
       If Dockery had pleaded guilty and received a two-level reduction for
acceptance of responsibility, his total offense level would have been 30 and his
corresponding Guidelines sentencing range for Counts Four and Five would have
been 168 to 210 months. Dockery asserts that the district court would have


       1
        Dockery also very briefly argues that Hunt was ineffective for failing to inform him
of the Guidelines relevant conduct section and that he would have pleaded guilty if he had
known of the relevant conduct section. See USSG § 1B1.3. But as the Government argues,
Dockery cannot show prejudice from this alleged omission because the court would have
considered relevant conduct at sentencing even if Dockery had entered a guilty plea. See
United States v. Goncalves, 613 F.3d 601, 609 (5th Cir. 2010) (reviewing district court’s
relevant conduct finding after guilty plea).

                                             5
    Case: 09-50758 Document: 00511461347 Page: 6 Date Filed: 04/29/2011



                                 No. 09-50758

sentenced him within this recalculated Guidelines range, resulting in a sentence
lower than 240 months. But the Guidelines are advisory; a district court is not
required to impose a sentence within the suggested Guidelines range. United
States v. Booker, 543 U.S. 220, 233 (2005). This court recognizes three types of
sentences: “(1) a sentence within a properly calculated Guidelines range; (2) a
sentence that includes an upward or downward departure as allowed by the
Guidelines; and (3) a non-Guideline sentence or a variance that is outside of the
relevant Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks omitted).
      Here, Dockery cannot meet his burden of showing a reasonable probability
that he would have received a lesser sentence if he had pleaded guilty because
the district court believed that his actions and criminal history warranted a
sentence equal to or higher than the statutory maximum. In its order reducing
Dockery’s sentence under the retroactive changes to the Guidelines, the district
court stated: “Had the Court not been limited by the statutory maximum in this
case, Defendant would have been originally sentenced to 262 months.”
Furthermore, the court strongly indicated at sentencing that it believed that an
upward departure or variance would have been appropriate if the calculated
Guidelines range had been lower:
      I look at you and you’re in the highest criminal classification that
      the United States gives people. You’re looking at an advisory
      guideline range of 210 to 262 plus another 120 months. And your
      criminal background . . . shows that an upward departure, not a
      downward departure, an upward departure could be considered
      under 4A1.3 because your criminal history doesn’t even count many
      of the convictions I’ve already . . . described; and your criminal
      convictions that did count are serious criminal offenses. Also, a
      departure under 2K2.4 and a departure under 18 United States
      Code 3553(a) could be considered. Normally with a person with your
      criminal background, I would be looking at a departure, but because
      of the advisory guidelines, it appears to that there’s no reason to
      upward depart in your case.

                                       6
      Case: 09-50758 Document: 00511461347 Page: 7 Date Filed: 04/29/2011



                                  No. 09-50758

The district court’s statements suggest that, even if Dockery had pleaded guilty,
the district court would have upwardly departed from the calculated Guidelines
range or varied from the Guidelines range under 18 U.S.C. § 3553(a) to arrive
at the same sentence of 240 months. See United States v. Davis, 602 F.3d 643,
649-50 (5th Cir. 2010) (stating in persuasive dicta that the court was “skeptical”
that the defendant had shown a reasonable probability that he would have
received a lower sentence under a correctly calculated Guidelines range where
“the district court imposed a sentence above even the incorrect advisory range
and supported this variance with reasons reflecting the gravity of the offense”).
This case differs for that reason from our recent opinion in Arnold v. Thaler, 630
F.3d 367, 371 (5th Cir. 2011), where we held that a finding of prejudice “should
not depend on the idiosyncracies of the particular decisionmaker.” Here, the
record shows that Dockery would have received the same sentence regardless of
his decision whether to plead guilty or not. Because Dockery has failed to show
a reasonable probability that he would have received a shorter sentence, his
ineffective assistance claim necessarily fails. Furthermore, because the “the
motion, files, and records of the case conclusively show that [Dockery] is entitled
to no relief,” the district court did not err in deciding his motion without an
evidentiary hearing. United States v. Bartholomew, 974 F.2d 39, 41 (5th
Cir.1992).
IV.    CONCLUSION
       For the forgoing reasons, the district court’s order is AFFIRMED.




                                        7
