                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-3278
                                    _____________

                                VALENTIN CEDENO,

                                       Appellant

                                           v.

                           UNITED STATES OF AMERICA
                                 _____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                   (No. 3:09-cv-06395)
                    District Judge: Honorable Garrett E. Brown, Jr.

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 18, 2011
                                    ____________

       Before: FUENTES and CHAGARES, Circuit Judges and POGUE, Judge. 1

                              (Filed: December 15, 2011)
                                     ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

      Valentin Cedeno appeals the District Court’s denial of his motion to vacate his

conviction of conspiracy to commit robbery. For the reasons that follow, we will affirm.

1
  Honorable Donald C. Pogue, Chief Judge, United States Court of International Trade,
sitting by designation.
                                              I.

       We write solely for the parties’ benefit and recite only the facts essential to our

disposition.

       In April 2005, Cedeno and several co-conspirators robbed a jewelry store in Boca

Raton, Florida. Cedeno was apprehended and charged with conspiracy to commit

robbery and robbery in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 2. On August

12, 2005, he pleaded guilty to both charges in the United States District Court for the

Southern District of Florida. The District Court subsequently sentenced him to a 65-

month term of incarceration. After prevailing on direct appeal in the Court of Appeals

for the Eleventh Circuit, Cedeno was resentenced to 51 months in prison.

       Meanwhile, investigators in New Jersey identified Cedeno as part of a Newark-

based group that committed “smash-and-grab” robberies of retail jewelry stores up and

down the East Coast. In July 2008, a federal grand jury sitting in the District of New

Jersey returned a superseding indictment that charged members of the group with

conspiracy to commit robbery from July 2003 to September 2005 in violation of 18

U.S.C. § 1951(a); robbery in violation of 18 U.S.C. §§ 1951 and 2; and receipt of stolen

goods in violation of 18 U.S.C. §§ 2315 and 2. The indictment alleged that Cedeno

participated in the conspiracy (count 1); committed robberies in Sanford, Florida in

January 2004 and Buford, Georgia in March 2004 (counts 7 and 8); and received stolen

goods (count 9). Named as a co-conspirator in the New Jersey indictment, among others,

was Angel Concepcion, an individual also named as a co-conspirator in the Florida

indictment.

                                              2
       The Hobbs Act conspiracy and robbery charges each carried a statutory maximum

of 20 years in prison, while the receipt of stolen goods charge carried a statutory

maximum of 10 years in prison. Cedeno’s counsel and the Government entered into plea

negotiations and eventually arrived at an agreement under which Cedeno would plead

guilty to the conspiracy charge in exchange for dismissal of the remaining charges. The

parties also agreed to argue for a sentence within the range recommended for offense

level 24 of the United States Sentencing Guidelines. Included in the plea agreement was

the following waiver of certain appellate rights: “Cedeno . . . voluntarily waives[] the

right to file any appeal, any collateral attack, or any other writ or motion . . . which

challenges the sentence imposed by the sentencing court if that sentence falls within or

below the Guidelines . . . offense level of 24.” In accordance with the plea agreement,

Cedeno pleaded guilty in the United States District Court for the District of New Jersey

to conspiring to commit robbery and the court sentenced him to a 57-month term of

incarceration, within the parties’ agreed-upon range. Cedeno did not appeal the sentence.

       In December 2009, Cedeno sought collateral relief in the District Court pursuant

to 28 U.S.C. § 2255. He contended that he was deprived of his Sixth Amendment right to

the effective assistance of counsel because his attorney failed to challenge the New Jersey

indictment on double jeopardy grounds and advised him to plead guilty to a conspiracy

charge possibly barred by the Double Jeopardy Clause of the Fifth Amendment.

Cedeno’s theory was that the conspiracy alleged in the New Jersey indictment was the

same conspiracy for which he already stood convicted by his guilty plea in the Southern

District of Florida.

                                               3
       The District Court denied the petition. It reasoned that Cedeno knowingly and

voluntarily entered into the plea agreement and that the waiver clause foreclosed review

of his conviction. Holding Cedeno to his waiver, the court concluded, would not result in

a miscarriage of justice because the Southern District of Florida and the New Jersey

indictments alleged two different conspiracies to commit robbery. 2 Absent a colorable

claim that the Double Jeopardy Clause would preclude prosecution under the second

indictment, the District Court held, Cedeno’s ineffective assistance of counsel claim was

without merit. The court did not hear argument or hold an evidentiary hearing.

       Cedeno filed a timely appeal. We remanded to the District Court to determine

whether a certificate of appealability should issue pursuant to 28 U.S.C. § 2253.

Concluding that Cedeno had failed to make a substantial showing of the denial of a

constitutional right, the District Court declined to issue the certificate of appealability.

Cedeno thereafter sought a certificate of appealability from this Court. We appointed

appellate counsel and granted a certificate of appealability on the following questions:

       1) whether Cedeno’s counsel was constitutionally ineffective in advising him to
       plead guilty to a charge that may have implicated double jeopardy concerns, and
       whether any such ineffectiveness rendered the plea agreement, including its
       waiver provision, invalid; and 2) if the plea was valid, whether there was a double
       jeopardy violation and, if so, whether enforcing the waiver provision would result
       in a ‘miscarriage of justice’ . . . .

2
  To determine whether the two conspiracies were in fact the same offense for double
jeopardy purposes, the District Court applied the totality of the circumstances test set
forth in United States v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987). It considered
whether the two conspiracies shared overlapping locations, dates of commission,
personnel, and overt acts. Appendix 8-11 (citing Liotard, 817 F.2d at 1078). Concluding
that three of the four factors indicated that Cedeno was charged with participating in two
distinct conspiracies, the District Court found that the second conspiracy charge did not
raise double jeopardy concerns.
                                               4
                                            II.

       The District Court had jurisdiction over Cedeno’s § 2255 petition pursuant to 28

U.S.C. § 1331. It issued final judgment on July 2, 2010. We granted a certificate of

appealability on January 13, 2011, and have jurisdiction over the appeal pursuant to 28

U.S.C. §§ 1291, 2253 and 2255(d). “In a federal habeas corpus proceeding, we exercise

plenary review of the district court’s legal conclusions and apply a clearly erroneous

standard to the court’s factual findings.” United States v. Lilly, 536 F.3d 190, 195 (3d

Cir. 2008).

                                            III.

       In its memorandum urging the District Court to deny Cedeno’s § 2255 petition, the

Government argued that Cedeno waived his right to seek collateral review. The District

Court agreed and construed the waiver provision in Cedeno’s plea agreement to preclude

his § 2255 motion. On appeal, the Government candidly concedes that its construction of

the waiver provision, accepted by the District Court, was mistaken. By the plain terms of

the agreement, Cedeno waived certain rights to seek collateral review of the sentence

imposed by the sentencing court, but he did not waive the right to challenge the legal

basis of the conviction itself. Cf. United States v. Khattak, 273 F.3d 557, 562 (3d Cir.

2001) (“[W]aivers of appeals should be strictly construed.”).

       The Government also concedes that, had Cedeno timely raised a double jeopardy

defense, he would have been entitled to a hearing on whether the two conspiracies

charged were in fact the same offense. United States v. Inmon, 594 F.2d 352, 353 (3d

Cir. 1979) (per curiam). In the hearing, the Government would have borne the burden of

                                             5
establishing by a preponderance of the evidence that the Double Jeopardy Clause did not

require dismissal of the second conspiracy charge. United States v. Inmon, 568 F.2d 326,

331-32 (3d Cir. 1977). In light of this concession, the parties now agree that the District

Court was mistaken in concluding that Cedeno lacked a colorable double jeopardy claim

prior to his second guilty plea.

       The upshot of the Government’s position is that we must consider Cedeno’s §

2255 petition on the merits. Accordingly, we turn to the question whether defense

counsel’s advice to Cedeno to plead guilty to a conspiracy charge possibly barred by the

Double Jeopardy Clause constitutes ineffective assistance of counsel.

                                             IV.

       The Supreme Court announced the standard for judging ineffective assistance of

counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a

defendant must show (1) that his counsel’s performance “fell below an objective standard

of reasonableness” and (2) that his counsel’s deficiencies caused prejudice such that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 688, 694. A slightly modified

version of Strickland’s two-part test applies to ineffective assistance of counsel claims

arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985); United States v.

Orocio, 645 F.3d 630, 638 (3d Cir. 2011). To establish prejudice, “the defendant must

show that there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Lockhart, 474 U.S. at 59.



                                              6
       The Government argues that notwithstanding the District Court’s erroneous

reasoning, we should affirm the denial of the motion to vacate because Cedeno cannot

demonstrate that his counsel’s performance was deficient or caused him to suffer

prejudice. Even if Cedeno had a colorable double jeopardy defense, the Government

maintains, defense counsel was not constitutionally deficient because he secured Cedeno

a favorable plea deal. Nor, in the Government’s view, can Cedeno establish prejudice

because even if he prevailed on a double jeopardy challenge to the conspiracy charge, he

was nonetheless subject to the two Hobbs Act robbery charges and the receipt of stolen

goods charge.

       “Our Court ‘has endorsed the practical suggestion in Strickland [that we may]

consider the prejudice prong before examining the performance of counsel prong because

this course of action is less burdensome to defense counsel.’” Lilly, 536 F.3d at 196

(quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005) (quotation marks

omitted)); see also 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.”). We opt to follow that approach here.

       Had defense counsel secured dismissal of the conspiracy charge, the Hobbs Act

charges arising out of the Sanford, Florida and Buford, Georgia robberies and the receipt

of stolen goods charge would have remained. See United States v. Felix, 503 U.S. 378,

389 (1992) (“[A] substantive crime and a conspiracy to commit that crime are not the

‘same offence’ for double jeopardy purposes.”). If Cedeno had gone to trial and been

convicted of those charges, his maximum statutory sentencing exposure was 50 years in

                                              7
prison. Following Cedeno’s guilty plea, however, the District Court imposed a 57-month

term of incarceration, a favorable sentence given the gravity of the charges.

       Cedeno does not deny his involvement in the robberies or his receipt of stolen

goods. The failure to disavow those charges supports the Government’s contention that

he would have been convicted had the case gone to trial. See Premo v. Moore, 562 U.S.

—, 131 S. Ct. 733, 745 (2011) (suggesting that a defendant’s failure to deny involvement

in the underlying crime counsels against a finding of prejudice). Nor does he contest the

strength of the Government’s evidence on the three remaining charges or represent that

he would have opted to go to trial on those charges had the District Court dismissed the

conspiracy charge. 3

       Cedeno has not established a reasonable probability that, had he known that the

conspiracy charge was susceptible to a double jeopardy challenge, he would not have

pleaded guilty to one of the three remaining charges and would have insisted on going to

trial. See Lockhart, 474 U.S. at 59. Consequently, the errors made by defense counsel, if

any, were not prejudicial. Absent a showing that defense counsel’s advice prejudiced the

outcome of the case, Cedeno’s ineffective assistance of counsel claim must fail. 4 We


3
 Cedeno’s brief asserts that “had he been advised on the significant meritorious defense
of double jeopardy . . . he would have insisted that counsel zealously challenge the New
Jersey indictment, and certainly would not have pled guilty to Count One of the New
Jersey Indictment.” Cedeno Br. 11. Nowhere does he insist that he would not have
pleaded guilty to any of the three remaining charges.
4
 We have not considered whether defense counsel renders deficient performance by
advising a defendant to plead guilty to a charge possibly barred by the Double Jeopardy
Clause in order to secure a favorable plea agreement. In view of Cedeno’s inability to
establish prejudice, we reserve the question for another day.
                                             8
therefore will affirm the District Court’s denial of the § 2255 motion on the alternative

basis that Cedeno was not deprived of his right to the effective assistance of counsel. See

United States v. Sanchez, 562 F.3d 275, 279 (3d Cir. 2009) (“An appellate court may

affirm a result reached by the District Court on different reasons, as long as the record

supports the judgment.”). 5 In light of this conclusion, we need not address the remaining

questions certified in the certificate of appealability.

                                               V.

       For the foregoing reasons, we will affirm the judgment of the District Court.




5
  Because Cedeno cannot prevail on his ineffective assistance of counsel claim, we need
not consider his cursory request for an evidentiary hearing “to explore trial counsel’s
‘strategy’ in not raising” the double jeopardy defense. Cedeno Br. 11. An ineffective
assistance of counsel claim that clearly fails to establish prejudice does not merit an
evidentiary hearing. See Lilly, 536 F.3d at 197 (“Because [the defendant] has failed to
establish that [defense counsel’s] advice prejudiced him in any way . . . , we conclude
that the District Court did not abuse its discretion in declining to hold an evidentiary
hearing before denying his claim.”).
                                               9
