     Case: 11-10786       Document: 00512176273         Page: 1     Date Filed: 03/15/2013




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

                                                                            FILED
                                                                          March 15, 2013
                                       No. 11-10786
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

WILLIAM BRENT,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CR-120-1


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       William Brent (“Brent”) appeals the denial of his 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence. Brent claims his counsel rendered
constitutionally deficient assistance by advising him to accept one plea deal over
another based, in part, on a miscalculation of the applicable guidelines range
under U.S.S.G. § 2K2.1. Because Brent failed to establish he was prejudiced by
his attorney’s purported ineffectiveness, we AFFIRM the district court’s denial
of his § 2255 motion.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                        No. 11-10786

                                               I.
       Brent was charged with eight counts of drug and firearm offenses;
combined, these carried more than a life sentence. The government offered
Brent two alternative plea offers: (1) plead guilty to two of the firearm offenses,
waive his appellate rights, and agree to a 240-month sentence (“First Plea
Offer”); or (2) plead guilty to all three of the firearm offenses, retain his appellate
rights, and accept a sentence imposed by the court after consideration of the
Sentencing Guidelines, which could be up to the 30-year maximum (“Second Plea
Offer”). When these deals were offered, Brent’s federal public defender and the
government mistakenly believed that the applicable guidelines range under
U.S.S.G. § 2K2.1 would be 168–210 months for the firearm offenses; it was
actually 262–327 months.1
       Brent attests he initially intended to accept the First Plea Offer because
its sentence was 10 years shorter than the sentence under the Second Plea Offer.
He contends he only agreed to accept the Second Plea Offer after his attorney
advised him that it was in his best interest to retain his appellate rights.2 When
the PSR came out with the recommended sentencing range of 262–327 months,
the parties realized their mutual mistake and Brent’s attorney asked the
government to renew the First Plea Offer. The government declined, stating
that if it had known about the proper cross reference, it would not have made the
20-year offer in the first place. Nevertheless, the government agreed that Brent
should have the opportunity to withdraw his plea under the Second Plea Offer.
Brent initially decided not to withdraw his plea but changed his mind and went

       1
          The parties had forgotten to apply the appropriate cross reference that took into
consideration Brent’s drug-trafficking offenses.
       2
          When he accepted the Second Plea Offer, Brent stipulated that he understood that
(1) his sentence would be up to the court’s discretion after considering the United States
Sentencing Guidelines, which are advisory only; (2) “no one can predict with certainty the
outcome of the Court’s consideration of the guidelines in this Case”; (3) he faced up to 30 years
in prison; and (4) he would not be able to withdraw his plea if his sentence was higher than
he expected.

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                                  No. 11-10786

to trial. Although the district court offered to appoint new counsel, Brent
retained his attorney, stating he was “happy and satisfied with the work” that
his federal public defender had done.
      Brent was convicted by a jury on one count of possession with intent to
distribute 50 grams or more of a mixture and substance containing cocaine base;
one count of possession of firearms in furtherance of a drug trafficking crime;
and three counts of being a felon in possession of a firearm. He received a life
plus 60-month prison sentence. We affirmed the district court’s judgment,
United States v. Brent, 300 F. App’x. 267 (5th Cir. 2008), and the Supreme Court
denied his petition for a writ of certiorari, Brent v. United States, 130 S. Ct. 54
(2009). The district court subsequently denied Brent’s § 2255 motion asserting
ineffective assistance of counsel without holding an evidentiary hearing. We
then granted a COA to determine whether Brent’s counsel rendered ineffective
assistance by advising Brent to accept the Second Plea Agreement rather than
the First.
                                        II.
      We review the district court’s factual findings underlying the denial of a
§ 2255 motion for clear error and its conclusions of law de novo. United States
v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). To succeed on an ineffective
assistance of counsel (“IAC”) claim, a petitioner must show that (1) his counsel’s
representation fell below an objective standard of reasonableness; and (2) he was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.
668, 687–88, 104 S. Ct. 2052, 2064 (1984). Prejudice from IAC where a plea offer
has been rejected requires a showing that, but for the counsel’s deficient
performance, there is a reasonable probability that (1) “the defendant would
have accepted the plea”; (2) “the prosecution would not have withdrawn [the
plea] in light of intervening circumstances”; (3) “the court would have accepted
its terms”; and (4) “the offer’s terms would have been less severe than under the



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judgment and sentence that in fact were imposed.” Lafler v. Cooper, 132 S. Ct.
1376, 1385 (2012).
      Brent argues that his attorney was ineffective for advising him to accept
the Second Plea Offer rather than the First Plea Offer. Although Brent asserts
that he would have accepted the First Plea Offer, and its 20-year sentence would
have been shorter than the life plus 60-month sentence he received after going
through trial, his argument comes up short under the second and third prongs
of Lafler’s prejudice test. First, Brent’s conclusory allegation that “it goes
without saying” that he would have received the 20-year sentence under the
First Plea Offer but for his attorney’s advice to accept the Second Plea Offer is
insufficient to establish prejudice. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.
1990). Further, the government’s refusal to renew the First Plea Offer upon
recognizing Brent’s actual advisory guidelines exposure indicates that it
probably would have withdrawn that offer before it could have been accepted by
the district court. Cf. United States v. Papeleo, 853 F.2d 16, 20 (1st Cir. 1988)
(holding that because a plea offer by the government is for a unilateral contract,
the government may withdraw it until the defendant’s guilty plea is accepted by
the court). Brent offers no evidence to the contrary. He similarly fails to provide
any reason why the district court would have been justified to accept the First
Plea Offer’s sentence that was 22 months below the minimum of the guideline
range. See U.S.S.G. § 6B1.2(c)(2) (noting that a court must have justifiable
reasons to accept a plea agreement under Rule 11(c)(1)(C) if the sentence is
outside the guideline range). Finally, it is particularly unlikely that the district
court would have accepted the First Plea Offer. The judge emphasized that the
violent   nature     of   Brent’s   crimes   combined    with   Brent’s   criminal
history—including attempted murder, several gun charges, aggravated assault
with a deadly weapon, evading arrest, and drug possession—meant “a life
sentence is appropriate in this case.” We therefore conclude that Brent has not
established he suffered prejudice as a result of his attorney’s advice to accept the

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Second Plea Offer. Accordingly, Brent’s IAC claim fails as a matter of law and
it is unnecessary for us to address whether his attorney’s performance was
deficient. United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000). The
district court’s denial of Brent’s § 2255 motion is AFFIRMED.




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