                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 08-1381
      ___________

Nona Lee Champion,                      *
                                        *
            Petitioner - Appellant,     *
                                        *
      v.                                *
                                        *
United States of America,               *
                                        *
            Respondent - Appellee.      *

      ___________
                                            Appeals from the United States
      No. 08-1386                           District Court for the
      ___________                           District of Minnesota.

Cecelia Ann Stanifer,                   *
                                        *   [UNPUBLISHED]
            Petitioner - Appellant,     *
                                        *
      v.                                *
                                        *
United States of America,               *
                                        *
            Respondent - Appellee.      *

                                  ___________

                             Submitted: March 11, 2009
                                Filed: April 6, 2009
                                 ___________
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
                          ___________

PER CURIAM.

      In these related appeals, Nona Champion and Cecelia Stanifer (collectively
“appellants”) challenge the district court’s1 denial of their 28 U.S.C. § 2255 petitions,
in which they argue that they received ineffective assistance of counsel. Because
appellants did not receive ineffective assistance of counsel, we affirm the district
court’s denial of their § 2255 petitions.

                     FACTS AND PROCEDURAL HISTORY

I.    Underlying proceedings

      A.     Facts pertinent to Champion

       In July 2006, Champion pleaded guilty to one count of conspiracy to commit
bank fraud and one count of possessing a counterfeit security, in violation of 18
U.S.C. §§ 371 and 513(a). In her plea agreement, Champion waived her right to
appeal “all appellate issues that might have been available if she had exercised her
right to trial[,]” including any sentence within the applicable Sentencing Guidelines
range for an offense level of 29 or “the manner in which [her sentence] was
determined in any collateral attack, including but not limited to a motion brought
under [28 U.S.C. § 2255].”




      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

                                          -2-
       At Champion’s February 2007 sentencing, the district court found her total
offense level to be 25 and, based on a criminal-history category of V, computed a
Guidelines range of 100-125 months’ imprisonment. Champion’s attorney disputed
the applicability of a four-level enhancement for her leadership role, but the district
court found that it applied. The district court granted the government’s motion for a

downward departure based on Champion’s substantial assistance and sentenced her
to 73 months on the possession count and 60 months on the conspiracy count, to run
concurrently. Champion did not file a direct appeal.



      B.     Facts pertinent to Stanifer

       In May 2006, Stanifer pleaded guilty to one count of conspiracy to commit bank
fraud and one count of possessing a counterfeit security, in violation of 18 U.S.C. §§
371 and 513(a). Like Champion, Stanifer waived her right to appeal “all appellate
issues that might have been available if she had exercised her right to trial[,]”
including any sentence within the applicable Sentencing Guidelines range for an
offense level of 29 or “the manner in which [her sentence] was determined in any
collateral attack, including but not limited to a motion brought under [28 U.S.C. §
2255].”

       At Stanifer’s February 2007 sentencing, the district court found her total
offense level to be 24 and, based on a criminal-history category of V, computed a
Guidelines range of 92-115 months’ imprisonment. The district court granted the
government’s motion for a downward departure based on Stanifer’s substantial
assistance. Additionally, the district court granted Stanifer’s request for a downward
departure based on an overstated criminal history. The district court ultimately
sentenced her to 70 months’ imprisonment. Stanifer, like Champion, did not file a
direct appeal.

                                           -3-
II.   Postconviction proceedings

       In November 2007, Champion and Stanifer each filed a § 2255 petition,
asserting that they received ineffective assistance of counsel. In December 2007, the
district court denied each of the petitions without a hearing, and granted certificates
of appealability on their claims of ineffective assistance of counsel. These appeals
follow.
                                    DISCUSSION

      A district court’s decision in a habeas claim of ineffective assistance of counsel
presents a mixed question of law and fact. See United States v. White, 341 F.3d 673,
677 (8th Cir. 2003). We review the ineffective-assistance issue de novo but the
underlying findings under the clearly erroneous standard. See id.

       Appellants make several substantive arguments. Champion asserts that she
received ineffective assistance of counsel at sentencing because her counsel failed to
object to the finding in the presentence-investigation report (“PIR”) that she was the
leader of the conspiracy. Stanifer contends that she received ineffective assistance of
counsel at sentencing because her counsel failed to object to the PIR’s criminal-
history calculation, conducted an inadequate investigation of her case, and was
inexperienced. Stanifer also disputes her counsel’s advice to plead guilty.

       The government asserts that appellants have waived their right to bring a § 2255
petition, and, therefore, we should dismiss the appeals without reaching their
substantive ineffective-assistance claims. In these cases, the district court recognized
that the waivers might apply but nevertheless resolved the cases on the merits. We do
the same.

      To prove ineffective assistance of counsel, a defendant must show that her
counsel’s representation was deficient and that the deficient performance prejudiced

                                          -4-
her defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Auman v.
United States, 67 F.3d 157, 162 (8th Cir. 1995). The first part of the test requires a
showing “that counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. In making that assessment, we presume
that counsel’s conduct falls within the wide range of reasonable professional
assistance. See id. at 689. The second prong of the test requires a showing that, but
for counsel’s deficiency, there is a reasonable probability that the result of the
proceeding would have been different. See id. at 694. We address appellants’
arguments in turn.

I.    Champion

       Champion makes one substantive ineffective-assistance claim: trial counsel
failed to object at the sentencing hearing to the PIR’s assessment that she played a
leadership role in the conspiracy.

      Champion’s plea agreement provides that “[a] 3 level increase is applicable
inasmuch as [she] was a manager or supervisor and the criminal activity involved five
or more participants and was extensive[.]” However, the plea agreement also provides
that Champion is “free to argue that a 2 level increase is applicable.”

       The PIR recommended applying a four-level enhancement under U.S.S.G. §
3B1.1(a) because Champion “was a leader or organizer of the criminal activity which
involved five or more participants or was otherwise extensive.” In her sentencing
position and at the sentencing hearing, Champion’s counsel objected to this
calculation, arguing that only a two-level enhancement under § 3B1.1(c) is
appropriate. The district court overruled the objection and applied the four-level
enhancement, calling Champion “the leader of the pack.”




                                         -5-
        Even if Champion could establish that her counsel demonstrated deficient
performance, she has not shown prejudice.2 See Strickland, 466 U.S. at 697 (noting
that a court need not engage in the analysis of both prongs of the ineffective-assistance
inquiry when “the defendant makes an insufficient showing on one”). In her
testimony at the plea hearing, Champion stated facts sufficient to support the district
court’s finding that she was a leader of the conspiracy. Champion described how (1)
the illegal scheme worked, (2) a co-conspirator would steal checks from the mail and
give them to her, (3) she distributed the counterfeit checks to other co-conspirators to
be cashed, and (4) she typically received one third of the proceeds, despite the
presence of many other individuals. Champion also said that the conspiracy had (1)
at least five participants, (2) a total financial loss that exceeded $400,000, and (3)
more than fifty victims. Thus Champion’s testimony shows that she was at the center
of an extensive conspiracy, and, accordingly, the record contains independent
support– notwithstanding counsel’s failure to object to the PIR– for the district court’s
finding that she was a leader of the conspiracy under § 3B1.1(a). Because Champion
cannot show prejudice, the district court did not err by denying her petition.3




      2
       The government argues that Champion’s counsel objected to the district court’s
calculation and, therefore, Champion cannot succeed on Strickland’s first prong. We
need not resolve this issue, but we note that Champion’s counsel argued only that the
two-level enhancement should not apply. In other words, Champion’s counsel did not
dispute the fact that Champion played a leadership role in the offense.
      3
        Champion also contends that the district court improperly denied her an
evidentiary hearing. But no such hearing is required when “the allegations . . . are
contradicted by the record, inherently incredible or conclusions rather than statements
of fact.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (internal
quotation marks omitted). Because Champion’s allegations are contradicted by the
record and involve conclusions rather than statements of fact, no such hearing was
required.

                                          -6-
II.   Stanifer

      Stanifer makes three substantive ineffective-assistance claims arising from her
sentencing, arguing that her counsel (1) failed to object to the PIR’s criminal-history
calculation, (2) failed to independently investigate the case, and (3) was
inexperienced. Additionally, Stanifer contends that she received ineffective assistance
when her counsel advised her to plead guilty without “advising [her] of the available
options and the possible consequences.”

       After our careful review of the record, we conclude that Stanifer did not receive
ineffective assistance of counsel. The plea agreement and the district court’s thorough
colloquy belie Stanifer’s argument that she did not knowingly and voluntarily plead
guilty. As for Stanifer’s other alleged errors, even if an error could be shown, she has
not shown prejudice. For example, even if her counsel failed to object to the PIR’s
criminal-history calculation, Stanifer has presented no evidence that her PIR would
have been different but for counsel’s failure to object. Additionally, even if counsel
failed to independently examine Stanifer’s criminal history and find other witnesses,
Stanifer has not even alleged that the criminal history is inaccurate or that the
witnesses would have undermined confidence in her conviction. Finally, even if
counsel’s inexperience rose to the level of a constitutional deficiency, Stanifer only
speculates about the possible prejudice of such an error. The district court gave
careful considerations to the contentions made by petitioners and properly rejected
petitioners’ claims.



                                   CONCLUSION

      For the foregoing reasons, we affirm.

                        ______________________________


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