     Case: 16-30516   Document: 00514176275    Page: 1   Date Filed: 09/29/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                No. 16-30516                           FILED
                                                               September 29, 2017
                                                                  Lyle W. Cayce
NICHOLAS LOYD YOUNG, SR.,                                              Clerk

             Petitioner - Appellant

v.

RICKY SPINNER, WARDEN, RIVER CORRECTIONAL CENTER,

             Respondent - Appellee



                Appeal from the United States District Court
                   for the Western District of Louisiana


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Nicholas Young pleaded guilty in state court to failure to register as a
sex offender. Based on representations by his counsel, Young harbored a
mistaken impression that by pleading he could receive a one-year sentence.
But Young actually faced a sentence ranging from five to twenty years. La.
Rev. Stat. § 15:542.1.4(A)(2). The trial court gave him twenty. After Louisiana
courts denied Young’s claim of ineffective assistance of counsel, he sought a
writ of habeas corpus in federal court. Even though defense counsel was
ineffective in his advice about the sentence, Young is unable to show that the
state court’s rejection of his claim was unreasonable because he has not shown
he would have gone to trial had he known his true sentencing exposure. We
therefore AFFIRM the denial of Young’s petition.
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                                        I.
      Young pleaded guilty to failure to register as a sex offender after already
having been convicted of the same offense. The new offense arose soon after
Young’s release from prison on his first failure-to-register offense. Young
registered with the local sheriff’s office the day after his release. But he failed
to complete the registration process because he could not pay the required
community notification fees.
      At his plea hearing, Young voiced some confusion. He said his attorney
had explained the minimum and maximum penalties associated with the
charge. But at no time during that plea hearing did the trial court state the
sentencing range for the charged offense, as would have been required in
federal court. See FED. R. CRIM. P. 11(b)(1). Young also acknowledged there
had been no promises made to induce him to plea. This acknowledgement,
however, was not without ambiguity. When the trial court initially asked
whether any promises had been made to induce him to enter a plea, Young
responded—according to the court transcript—“PSI, and --.” Young asserts, to
the contrary, he said “Pre-Sentence Investigation plus one (1) year with no
Multi-Bill,” though that is not reflected in the transcript. After the trial court
repeated the question, Young claims he responded “no” because he was
intimidated, scared, and confused.
      After the plea hearing but before sentencing, Young wrote to counsel,
explaining he had understood he was to receive a one-year sentence but
subsequently learned that under the statute he “face[d] a five (5) to twenty (20)
year sentence at hard labor.” The letter says Young “would not have plead[ed]
guilty had [he] know[n] [he] could possibly be facing twenty (20) years in
prison.” Implicitly confirming prior representations to Young that he could
receive a one year sentence, Young’s counsel responded that if the judge found
his violation to “be a mere technical matter, he will give his usual sentence of
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                                       No. 16-30516
one year.” But, he noted, “[i]f the judge finds that the violation was more
willful, he might be less generous.” Counsel then stated that when he returned
from vacation he would discuss the matter with Young. He also said that “if
the judge’s decision seems to be harsh, we can request permission to withdraw
your plea. However, this will mean a trial, and a conviction would undoubtedly
mean more time.”
       As Young’s letter had recognized, counsel was wrong that one year was
even a possibility. Under Louisiana law, a second conviction for failure to
register is punished by prison “with hard labor for not less than five years nor
more than twenty years.” LA. REV. STAT. § 15:542.1.4(A)(2). 1
       Despite having learned about the twenty year maximum and his ability
to ask the court to withdraw the plea, Young proceeded to sentencing without
raising any of these issues with the judge.               The trial court imposed the
maximum of twenty years, citing Young’s lengthy criminal history, which
includes convictions for theft, driving while intoxicated, burglary, possession
of a controlled substance, carnal knowledge of a juvenile, and failure to register
as a sex offender. Although he objected to the sentence as “excessive,” Young
did not seek to withdraw his guilty plea at this point either. Young’s challenge
to his sentence on direct appeal was unsuccessful.
       Young then sought postconviction relief in state court on the ground of
ineffective assistance of counsel. Relying on Young’s responses during his plea
hearing, the trial court found he failed to demonstrate either that counsel was
deficient or how the allegedly deficient performance prejudiced his defense by
causing him to enter a guilty plea. The court did not mention the letters



       1Not that it would excuse the incorrect advice, but the error cannot even be explained
by confusion about the difference between the penalties for a first and subsequent offense.
Even a first offense for failure to register requires a sentence of two to ten years. LA. REV.
STAT. § 15:542.1.4(A)(1).
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                                 No. 16-30516
exchanged between Young and his counsel before sentencing.            Louisiana
appellate courts declined to review the trial court’s judgment.
      Young then filed his petition in federal court. The magistrate judge
found that Young had a plausible claim as to deficient representation. But it
concluded that Young could not meet the second requirement of a Strickland
claim because he did not produce evidence showing his lack of guilt nor identify
any affirmative defense he could have asserted at trial. All Young could point
to in support of his argument that he would have gone to trial had he known
the accurate sentencing range was a single conclusory statement. As a result,
the magistrate found that Young could not overcome the prejudice aspect of
the state court’s rejection of his claim given the deference it is due on federal
review. The district court concurred, denying Young’s habeas petition. It did,
however, grant a certificate of appealability, so we now review its decision.
                                       II.
      Young must show that the Louisiana courts’ rejection of his Sixth
Amendment claim “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States.”   28 U.S.C. § 2254(d)(1).     That clearly established law for
ineffective assistance claims is the two-part test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). To prove ineffective assistance, a petitioner
must demonstrate “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.”      Id. at 687.   Because both
Strickland and Section 2254(d) create deferential standards of review, when
the “two apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562
U.S. 86, 105 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
      Even viewed under this lens of double deference, there was no reasonable
basis for Young’s counsel to tell him there was a possibility of getting a one-
year sentence when that sentence was not possible. The state court held that
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                                  No. 16-30516
Young failed to demonstrate how counsel’s performance was deficient, in part
because Young acknowledged during the plea hearing that counsel advised him
of the minimum and maximum penalties associated with the charge. But the
trial court did not state the sentencing range at the hearing, so there is nothing
in the record to show that the information Young’s counsel conveyed was
correct. And the post-hearing correspondence between Young and his counsel
shows he was told an incorrect sentencing range. Although counsel’s promise
was conditional—it assured Young that if the judge found his “failure to
register [to] be a mere technical matter, he will give his usual sentence of one
year”—the lowest possible sentence for this repeat offense was five years. It
also appears counsel made similar statements to Young before the plea hearing
because Young “understood that [he] was receiving a one (1) year sentence.”
Few things are more fundamental to the defense of a criminal case than
knowing the defendant’s sentencing exposure. By providing his client with a
wrong answer to that basic question, counsel’s performance fell below the
standard the Sixth Amendment requires.
      But counsel’s ineffectiveness is only a basis for vacating a conviction if
there is a reasonable probability it made a difference to the outcome of the
proceeding. Strickland, 466 U.S. at 694. Because Young pleaded guilty, to
show this prejudice he must demonstrate that but for counsel’s error, he would
have insisted on going to trial. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir.
1994); see Hill v. Lockhart, 474 U.S. 52, 58 (1985) (applying, for the first time,
Strickland’s standard “to challenges to guilty pleas based on ineffective
assistance of counsel”). The Supreme Court recently clarified its standard for
showing prejudice in the context of a guilty plea, emphasizing the need for a
case-by-case examination of the totality of the evidence. Lee v. United States,
137 S. Ct. 1958, 1966 (2017).      Although the Court declined to adopt an
automatic rule denying prejudice claims when the defendant cannot mount a
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                                 No. 16-30516
viable defense, it warned against courts “upset[ting] a plea solely because of
post hoc assertions from a defendant about how he would have pleaded but for
his attorney’s deficiencies. Judges should instead look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.” Id. at 1966-67.
      In Lee, the defendant—a lawful permanent resident—“adequately
demonstrated a reasonable probability that he would have rejected” a plea for
a drug offense “had he known that it would lead to mandatory deportation.”
Id. at 1962, 1967. Deportation was the determinative issue in Lee’s plea
decision. Id. at 1967. Lee repeatedly asked his attorney whether he faced risk
of deportation, and both Lee and his attorney later testified that he would have
gone to trial but for counsel failing to apprise him of the immigration
consequences of his plea. Id. at 1967-68. Moreover, during the plea colloquy,
Lee was clearly confused about the immigration consequences of pleading
guilty and only proceeded with the plea after being assured by counsel that the
judge’s admonition that a conviction could result in deportation was a
“standard warning.”     Id. at 1968.       Simply put, but for the “attorney’s
incompetence, Lee would have known that accepting the plea agreement would
certainly lead to deportation. Going to trial? Almost certainly.” Id. The
“almost” proved critical because the benefits of avoiding deportation so far
outweighed the burdens of “a year or two more of prison time” by risking a
trial. Id. at 1969. That Lee would not have accepted a plea had he been
properly informed, despite overwhelming evidence against him on the charged
offense, was “backed by substantial and uncontroverted evidence.” Id.
      Two other circuits have already applied Lee to cases in which the critical
plea consideration was not deportation but the defendant’s sentencing
exposure. In United States v. Pola, the defendant could not show prejudice on
his claim that counsel overestimated the likelihood that the district court
would impose a below guidelines sentence. 2017 WL 3098179, at *6, 8 (6th Cir.
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July 21, 2017). Pola’s attorney had filed a motion at the plea hearing, stating
that the parties contemplated a potential sentence of time served, though the
government disavowed this assertion. Id. at *6. But at the same hearing, Pola
said he understood his plea exposed him to a maximum sentence of twenty
years, claimed he studied the Sentencing Guidelines and “absolutely”
understood them, and acknowledged the court was not bound by any
agreement between the parties regarding what his sentence would be. Id. In
light of the contemporaneous evidence, the court cast doubt on Pola’s assertion
that he would have insisted on his right to trial had he thought he would be
sentenced to more than time served (nine months). Id. at *8. Even if the
government’s evidence was “hardly insurmountable,” a questionable assertion,
“[b]y all appearances, there was nothing for Pola to gain and much to lose by
insisting on a trial.” Id.
      Similarly, in Thompson v. United States, the court rejected a defendant’s
ineffective assistance claim based on counsel’s assertion that pleading would
likely lead to a prison sentence of twelve years, as opposed to the life sentence
the defendant ultimately received. 2017 WL 4125650, at *4-5 (8th Cir. Sept.
19, 2017).    In light of that severe sentence, Thompson’s after-the-fact
assertions that he would have insisted on a trial absent counsel’s deficient
performance “ha[d] a ring of truth,” but the contemporaneous evidence
rebutted his claim. Id. at *4. Although Thompson at times indicated an
interest in pursuing a trial, he never moved to withdraw his guilty plea or
indicated at sentencing that he anticipated a particular sentence. Id. In fact,
when the district court explicitly told Thompson that the minimum sentence
he would receive was twelve years “but that he could still be sentenced to a
longer term,” Thompson indicated he understood. Id.
      Young contends that had he reasonably believed he would be subject to
a twenty-year sentence, he would not have pleaded guilty. This assertion is
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not completely without contemporaneous backing. Three days after pleading
guilty and over three months before sentencing, Young informed counsel “I
would not have plead[ed] guilty had I know[n] I could possibly be facing twenty
(20) years in prison.” And unlike Pola and Thompson, there is no indication
Young knew his true sentencing exposure prior to pleading guilty.          Even
though Young said his counsel explained the minimum and maximum
potential sentences, nothing in the hearing transcript indicates that counsel
advised him of the correct range. At least for the minimum sentence, counsel’s
understanding was wrong.
      But the evidence against Young for failure to register made his acquittal,
and ability to show prejudice, exceedingly unlikely.      See United States v.
Kayode, 777 F.3d 719, 726-27 (5th Cir. 2014) (finding that the “overwhelming
evidence” on the charged offenses and lack of a viable defense other than
Kayode’s own sworn testimony “weighs against a finding of prejudice”);
Armstead, 37 F.3d at 210 (concluding Armstead, “in light of the strong evidence
against him”—including an eyewitness lineup identification and his
fingerprints being found at the crime scene—had not shown “there is a
reasonable probability that he would not have plead[ed] guilty”). Contrast
Spriggs v. United States, 2017 WL 3411796, at *3-4 (11th Cir. Aug. 9, 2017)
(per curiam) (finding possible prejudice when counsel did not pursue Fourth
Amendment violations despite defendant’s claims of innocence and when a
motion to suppress may have been dispositive). Although he did register as a
sex offender with local police, Young did not fulfill the community notification
requirement. The lack of any defense to the charge means that Young still had
a strong incentive to plead guilty even with a sentencing range of five to twenty
years. Although circumstances ultimately did not bear this out, at the time of
pleading Young had little to gain and much potentially to lose—not being able
to argue that his acceptance of responsibility warranted leniency—by insisting
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on a trial. See Kayode, 777 F.3d at 726 (acknowledging “the risks faced by a
defendant in selecting a trial rather than a plea bargain,” such as facing
conviction on more counts and a “much higher sentence”); United States v.
Fuller, 769 F.2d 1095, 1098 (5th Cir. 1985) (“A defendant, faced with the
possibility of fifteen years in prison, might well take a desperate gamble for
clemency by pleading guilty as charged.”). And counsel was correct that the
nature of Young’s offense—he did not completely ignore the reporting
requirement but was just unable to pay the community notification fee—
supported relying on acceptance of responsibility to try and minimize the
sentence. Finally and importantly, Young did not seek to withdraw his plea
before the sentencing hearing even though by that time he realized he faced a
potential sentence of twenty years and had been told by counsel that seeking
withdrawal was an option. See Thompson, 2017 WL 4125650, at *4 (noting
this is a factor that counsels against a finding of prejudice).
      As opposed to Lee, who could point to substantial contemporaneous
evidence that he would have risked a trial absent his attorney’s error, Young
relies largely on hindsight. And while Lee was willing to risk additional time
in prison in order to avoid the calamity of deportation, Young had only one
major interest: minimizing his sentence. Pleading guilty usually does reduce
the length of a defendant’s sentence. It ended up not achieving that goal for
Young, so in retrospect his contention that he would have gone to trial “has a
ring of truth.” But at the time he pleaded guilty, Young could not have known
that the trial court would show no leniency.        At that time, Young could
maximize his chance of receiving a more lenient sentence by pleading guilty,
rather than risking a trial for which he has identified no plausible defense.
      There is one more difference between this case and Lee, and it is a
significant one. Lee was convicted in federal court, so his ineffective assistance
claim was being reviewed by a federal court in the first instance. See 28 U.S.C.
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§ 2255. Young was convicted in state court, so we are deciding only whether
the state court unreasonably applied the Strickland standard in finding no
prejudice. See 28 U.S.C. § 2254(d)(1). Even if Young has a plausible argument
that he would have gone to trial had he known a one-year sentence was
impossible, that does not establish that the state court’s contrary conclusion
was unreasonable. For the reasons we have discussed, it was not.
                                    ***
      The judgement of the district court is AFFIRMED.




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