                Case: 15-15639      Date Filed: 08/27/2018      Page: 1 of 6


                                                                 [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-15639
                              ________________________

                      D.C. Docket Nos. 4:13-cv-00195-RH-CAS,
                             4:10-cr-00070-RH-CAS-1

SHANE JONES,                                                     Petitioner-Appellant,


                                           versus

UNITED STATES OF AMERICA,                                         Defendant-Appellee.

                              ________________________

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

                                    (August 27, 2018)

Before WILSON and NEWSOM, Circuit Judges, and WRIGHT, * District Judge.

PER CURIAM:




*
Honorable Susan Webber Wright, United States District Judge for the Eastern District of
Arkansas, sitting by designation.
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      Shane Jones, a federal prisoner, appeals the district court’s decision denying

his motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. After review and

oral argument, we affirm.

                                              I.

      Jones pleaded guilty to possession with intent to distribute more than five

grams of cocaine base in violation of 21 U.S.C. § 841(b)(1)(B)(iii). At the time of

sentencing on July 14, 2011, Jones was serving a three-year sentence in the Florida

Department of Corrections for violating conditions of probation imposed in

connection with convictions for possession of a firearm by a convicted felon and

violation of driver’s license restrictions.

      After a three-level adjustment for acceptance of responsibility, Jones’s total

offense level was 34, and with a level VI criminal history category, the advisory

guidelines range was 262 to 327 months. Jones’s sentencing attorney argued that

his criminal history category was “grossly overstated” because several of the

violations factored in occurred within a short period of time, when Jones was only

nineteen years old. Jones’s attorney also noted that Jones “picked up three

[criminal history category] points” for the violations that resulted in his

undischarged state prison sentence.



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      The district court found that Jones’s level VI criminal history category was

proper but that treating him as a career offender would overstate the seriousness of

his crimes. On the other hand, the district court found it “very troublesome” that

Jones had a pattern of re-offending when given a chance to rehabilitate.

Ultimately, the district court imposed a 120-month sentence, the statutory

mandatory minimum. Speaking directly to Jones, the district court stated, “I have

to tell you, Mr. Jones, I think this is the right sentence under all of the

circumstances, and so that's why this is the sentence I'm going to impose.”

      Jones appealed his conviction and sentence, and this Court affirmed. Jones

then filed a motion pursuant to 28 U.S.C. § 2255, asserting several ineffective

assistance of counsel claims, including that his sentencing attorney failed to

request that his federal sentence run concurrently with his undischarged state

sentence. Jones alleged that his attorney had agreed to request that his federal

sentence run concurrently with his state sentence, but when Jones reminded him to

do so at sentencing, counsel misinformed him that he could address the issue on

appeal. The district court adopted a magistrate judge’s report and

recommendation, finding that Jones’s § 2255 motion should be denied in its

entirety, without an evidentiary hearing. The district court denied a certificate of

appealability but granted leave to proceed on appeal in forma pauperis.

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      This Court granted a certificate of appealability on the single issue of

whether the district court erred in denying, without an evidentiary hearing, Jones’s

claim that counsel rendered ineffective assistance by failing to request that Jones’s

federal sentence run concurrently with his undischarged state sentence.

                                         II.

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

conclusions de novo and factual findings for clear error. A claim of ineffective

assistance of counsel is a mixed question of law and fact that we review de novo.”

Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008). We review the

denial of an evidentiary hearing for abuse of discretion. Diveroli v. United States,

803 F.3d 1258, 1262 (11th Cir. 2015) (citing Aron v. United States, 291 F.3d 708,

714 n.5 (11th Cir. 2002)).

                                         III.

      An evidentiary hearing is not required where an ineffective assistance of

counsel claim can be resolved on the existing record. Schultz v. Wainwright, 701

F.2d 900, 901 (11th Cir. 1983). To prevail with an ineffective assistance of

counsel claim, Jones has the burden to establish both deficient performance and

prejudice--that “counsel's representation fell below an objective standard of

reasonableness,” and that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

      The Government concedes that if Strickland’s deficient performance prong

were dispositive, Jones would be entitled to an evidentiary hearing, and we assume

without deciding that Jones’s allegations are sufficient to establish deficient

performance. To establish prejudice, Jones must establish a reasonable probability

that had his sentencing counsel made an explicit request, the district court would

have ordered his federal sentence to run concurrently with his undischarged state

sentence. United States v. Alvarez, 184 Fed. Appx. 876, 881 (11th Cir. 2006); see

also Peoples v. Campbell, 377 F.3d 1208, 1244 (11th Cir. 2004). A review of the

record confirms that Jones is unable to make this showing. The district court

pronounced Jones’s sentence as follows: “Based on the Sentencing Reform Act of

1984, as amended, the court's judgment is that the defendant, Shane Jones, is

committed to the Bureau of Prisons for 120 months.” Under the Sentencing

Reform Act, multiple terms of imprisonment imposed at different times run

consecutively unless the court orders otherwise, and the decision is left to the

discretion of the sentencing court. See 18 U.S.C. § 3584(a). The possibility that

the district court might have exercised its discretion to run Jones’s federal sentence

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concurrently with the remaining term of his state court sentence is insufficient to

show prejudice, and the record indicates that a request to structure Jones’s sentence

in that way would have been denied. The district court, aware that Jones was

serving a state sentence for parole violations, plainly stated that the sentence

imposed was “the right sentence under all of the circumstances.”

      Finally, because Jones is unable to show prejudice, an evidentiary hearing is

unnecessary. Alvarez, 184 Fed. Appx. at 881(citing Breedlove v. Moore, 279 F.3d

952, 960 (11th Cir. 2002) (explaining that an evidentiary hearing is not necessary if

it would not assist in the resolution of the claim under § 2255).

                                         IV.

      For the reasons stated, we affirm the district court’s denial of Jones’s claim

asserting ineffective assistance of counsel.

AFFIRMED.




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