                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-7464



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


DANIEL ANTHONY WEYMOUTH,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-03-82)


Argued:   September 25, 2007             Decided:    December 6, 2007


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished opinion.      Judge Niemeyer wrote       the
opinion, in which Judge Wilkinson and Judge Shedd joined.


ARGUED: Leeann N. Rosnick, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant.     Richard Daniel Cooke, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.      ON BRIEF: Erwin
Chemerinsky, James E. Coleman, Jr., Catherine Fisk, Jessica A.
Bodger, Laura Durity, Michael P. Goodman, Elizabeth Magee, DUKE
UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant.
Chuck Rosenberg, United States Attorney, Laura P. Tayman,
Assistant United States Attorney, Edward K. Nickel, Third Year Law
Student, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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NIEMEYER, Circuit Judge:

      Daniel Weymouth pleaded guilty to conspiracy to distribute

ecstasy and PCP in Chesapeake, Virginia, in violation of 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(C), and the district court

sentenced him to 124 months’ imprisonment.               Ten months later,

Weymouth filed a motion in the district court under 28 U.S.C. §

2255 to have his conviction vacated, contending that in pleading

guilty, he was denied the effective assistance of counsel.               He

claimed that in one of three letters advising him what sentence to

expect, his counsel told him that he faced a minimum sentence of

20 years’ imprisonment, whereas he actually faced a maximum

sentence of      20 years’ imprisonment, as provided by 21 U.S.C. §

841(b)(1)(C).       The district court denied his § 2255 motion,

finding that Weymouth had satisfied neither prong of the analysis

under Strickland v. Washington, 466 U.S. 668 (1984), required to

demonstrate that he had been denied the effective assistance of

counsel.      For the reasons that follow, we affirm.


                                       I

      After law enforcement officers purchased ecstasy at a house

in Chesapeake, Virginia, they executed a search warrant there on

February 21, 2003. During this search, the occupants of the house

advised the officers that “Dan, Mike and Mike” would be coming to

the   house    later   with   an   additional   supply   of   ecstasy.   As

represented, three men arrived at the house at about midnight, and

                                       3
two of the men went to the side door, where law enforcement

officers detained and searched them.       Michael Riopel was found to

have 100 tablets of ecstasy in his pocket, and the defendant

Weymouth was found to have $2,470 in cash and more than 40 pills

and capsules.     The pills found on Weymouth were later determined

to contain ecstasy and PCP.

       After being advised of his constitutional rights, Weymouth

told officers, “you got me.”      When they asked him about the $2,470

in cash that he was carrying, Weymouth indicated that he was

planning to travel to New York City that night to purchase more

ecstasy.   He informed the officers that he had previously made 10

to 20 trips to New York to obtain ecstasy, and on each trip he had

returned with between 500 and 1,000 pills.        He said that on most

of the trips he returned with 500 pills, and that a smaller

quantity was not worth his while.

       Weymouth was indicted in six counts:      one for conspiracy to

distribute and possess with intent to distribute ecstasy and PCP,

in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C); two

counts for possession with intent to distribute ecstasy and PCP,

in violation of id. §§ 841(a)(1) and 841(b)(1)(C); and three

counts for possession of ecstasy and PCP, in violation of id. §

844.

       During   the   pretrial   period,   Weymouth’s   court-appointed

attorney corresponded with him by letter at least three times,


                                    4
giving him advice on how to proceed.               In her first letter, dated

June   20,   2003,     Weymouth’s    attorney       indicated      that   a    “rough

estimate” of the Sentencing Guidelines calculation placed Weymouth

at level 28.    With an estimated criminal history category of V and

a potential two or three-point reduction if Weymouth accepted a

plea bargain, she estimated that the likely sentence would be 110-

137 months’ imprisonment. She confirmed that the residents of the

house where Weymouth was arrested would testify against him and

that his post-Miranda statements to law enforcement officers were

“completely inculpatory.”

       In her second letter, dated June 25, 2003, Weymouth’s counsel

informed him that if he went to trial he faced 140-175 months’

imprisonment and that “[o]f course, if you go to trial, you have

no defense.”         She also informed him that he probably had a

criminal     history    of   category     VI,      which   would    increase      the

Sentencing     Guideline     range   to       approximately     151-188       months’

imprisonment, even after a plea bargain.                   She stated, however,

that she was still investigating whether he qualified as a career

offender.     She continued:

       You advised me today in lock up after the arraignment
       that you would take a plea and cooperate if you were a
       [Career Offender] but that you only wished to plead
       “straight up” if you were not a [Career Offender].

                              *      *         *

       As I currently understand it, you are willing to plead
       in either case, you just don’t want to have to cooperate
       if you don’t qualify as a Career Offender.

                                          5
      In her third letter, dated July 15, 2003, Weymouth’s attorney

advised him that “[he] really [did] not have standing to contest

the search warrant” which led to his arrest.                   Furthermore, she

reminded him that “[y]ou still must face the reality that Mike

Riopel will be testifying against you at trial, as will Daniel

Clair/Reese and maybe Mike Phillips.               Their testimony will still

be sufficient to convict . . . .”                 She also made the following

statement,      which       forms   the   basis    of    Weymouth’s      claim   for

ineffective assistance of counsel:

           Lastly, if you go to trial the government will most
      definitely file an 851 notice of intent to increase your
      potential penalties (see highlighted part of enclosed
      statute). That would mean your statutory low end would
      be 20 years, and the maximum would be life. Of course,
      if it turns out you are a career offender, then your
      guidelines will put you very near the 20 years anyway.

Attached to the letter was a xeroxed copy of 21 U.S.C. § 851 and

the   portion    of     §   841(b)(1)(A)      which     provides   for   a   20-year

mandatory minimum sentence.           The language of Weymouth’s counsel’s

letter is confusing and in some parts incorrect. It is apparently

correct insofar as it states that if Weymouth is a career offender

the recommended sentence would be near 20 years.                         But it is

obviously incorrect to state that if the government filed a § 851

notice, Weymouth’s sentencing range would be 20 years to life.

While that would be true under § 841(b)(1)(A), it was not true for

an offense under § 841(b)(1)(C), which provides for a 20-year




                                          6
maximum sentence, or 30 years if a § 851 information of a prior

drug conviction were filed.

     Weymouth    ultimately       pleaded   guilty    to    Count     I    of    the

indictment, charging him with conspiracy to distribute and possess

with intent to distribute ecstasy and PCP, in return for the

government’s dismissal of the remaining charges.                In sentencing

Weymouth, the district court found that under the Sentencing

Guidelines Weymouth’s offense level was 25, including credit for

acceptance of responsibility.         With a criminal history Category

VI, therefore, the Sentencing Guidelines provided for a sentencing

range   of   110-137    months’    imprisonment.         The   district         court

sentenced Weymouth to 124 months’ imprisonment.

     Weymouth thereafter filed a motion under 28 U.S.C. § 2255 to

set aside his conviction and sentence, claiming that he received

ineffective assistance of counsel because his counsel stated to

him that he faced a mandatory minimum sentence of 20 years for an

indictment charging him with a violation under § 841(b)(1)(C). He

claimed, “[i]f it was not for counsel’s mistake I would have

continued to trial like I had wanted.”            The district court denied

Weymouth’s    motion,    concluding       first   that     Weymouth       had    not

demonstrated that his attorney’s performance, “when considered in

its totality,” was outside of “the wide range of reasonably

professional conduct that Strickland permits.”                 The court also

concluded that even if his counsel’s performance was sufficiently


                                      7
deficient to establish the first prong of Strickland, Weymouth

failed to establish the prejudice prong, given his acknowledgment

of his guilt, his indication to the court at the Rule 11 hearing

that he fully understood his plea agreement, and the lack of

evidence that he would have proceeded to trial absent counsel’s

isolated erroneous statement. In response to Weymouth’s petition

for relief from the judgment under Rule 60(b), the court explained

yet further:

          Here, petitioner has failed to establish that a
     reasonable defendant would not have pled guilty but
     instead insisted on going to trial. Petitioner not only
     stated under oath in front of this court that he was in
     fact guilty but he stated in his reply to the
     government’s response to his § 2255 motion that he
     “doesn’t wish to insult the court’s intelligence by
     claiming actual innocence.”       Reply, p. 8.       The
     petitioner has presented no evidence that a reasonable
     defendant, in the petitioner’s position, in light of the
     evidence the government had against him, would have
     insisted on going to trial. Furthermore, the defendant
     acknowledges that if he went to trial and was found
     guilty he would have likely received a sentence greater
     than what he received as a result of the guilty plea.
     Instead, petitioner merely relies on his personal
     preference to risk a significantly higher sentence as
     evidence that he would have insisted on a trial but for
     the single mistake his counsel made.     Petitioner has
     failed to establish prejudice under Strickland and Hill.

     We granted the certificate of appealability on the issue of

whether Weymouth’s attorney provided ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984), and

Hill v. Lockhart, 474 U.S. 52 (1985).




                                8
                                     II

     To   be   entitled    to   relief,   Weymouth     must    show    that    his

counsel’s      conduct    “fell   below      an    objective        standard    of

reasonableness,” and that he was thereby prejudiced.                 Strickland,

466 U.S. at 688, 694.      Because his claim follows a plea of guilty,

demonstrating      prejudice      requires        showing     “‘a     reasonable

probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.’”

Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (quoting

Hill, 474 U.S. at 59).

     Petitioner bases his claim on the single misstatement by his

counsel that he was subject to a minimum sentence of 20 years and

a maximum of life imprisonment.           He claims that but for that

statement, he would not have pleaded guilty. That claim, however,

is belied by the record and by what any reasonable defendant in

his position would have concluded.

     First, his counsel repeatedly provided him with calculations

under the Sentencing Guidelines, advising him correctly of the

estimated sentencing ranges for a violation of § 841(b)(1)(C). In

her first letter, his counsel advised that based on a criminal

history Category V, Weymouth’s likely sentence would be in the

range of 110-137 months’ imprisonment.               In her second letter,

Weymouth’s counsel informed him that his criminal history was

probably a Category VI and therefore his estimated sentencing


                                     9
range would be 151-188 months’ imprisonment.                 She also confirmed

Weymouth’s    statement      that    he    was     willing    to   plead     guilty

regardless of whether he had to cooperate with the government, as

he had no defense.        Her third letter to Weymouth contained a

misstatement of the sentence, but it also included a correct

explanation that, “if it turns out you are a career offender, then

your guidelines will put you very near the 20 years anyway.”                    If

Weymouth had paid attention to the one misstatement, he certainly

would have raised a question in view of the extensive amount of

correct information given to him about the applicable Guidelines

range over the course of three letters.

     Second, any doubt about the proper estimated range would have

been put to rest by the written plea agreement which clearly

stated, on its first page, that Weymouth was charged with a

violation of 21 U.S.C. § 841(b)(1)(C) with a maximum penalty of 20

years’    imprisonment.       The       plea   agreement’s      information     was

consistent with the indictment, which Weymouth acknowledged having

receiving, charging him with a violation of § 841(b)(1)(C), not §

841(b)(1)(A),    and   having       a     maximum    sentence      of   20   years’

imprisonment.

     Third, and perhaps most compelling, is the fact that at the

Rule 11 colloquy, the district court clearly repeated the charges

against    Weymouth    and     the       maximum     sentence      of   20-years’

imprisonment. When asked at the Rule 11 colloquy if he understood


                                          10
this penalty, Weymouth stated that he did. The transcript reveals

no evidence to indicate that Weymouth was in any way confused.            To

the contrary, he assured the court that he was not confused and

understood what he was being told.           This colloquy alone denies

Weymouth the opportunity to claim that he reasonably relied on his

counsel’s mistake when the mistake was corrected at the Rule 11

hearing.     As we explained in United States v. Lambey, 974 F.2d

1389, 1395 (4th Cir. 1992) (en banc):

       [I]f the information given by the court at the Rule 11
       hearing corrects or clarifies the earlier erroneous
       information given by the defendant’s attorney and the
       defendant admits to understanding the court’s advice,
       the criminal justice system must be able to rely on the
       subsequent dialogue between the court and the defendant.

       The burden falls on Weymouth to demonstrate that he was

prejudiced by any deficiency in his counsel’s performance, and in

this   case,   he   has   failed   to    carry   that   burden   of   showing

prejudice.     See United States v. Foster, 68 F.3d 86, 88 (4th Cir.

1995).

       Weymouth relies on Hammond v. United States, 528 F.2d 15 (4th

Cir. 1975), to argue that he was prejudiced by his advice of

counsel.   In Hammond, counsel erroneously advised his client that

he faced a 90-year sentence, when in reality he could at most have

received a 55-year sentence.            The error that counsel made in

Hammond, however, unlike that which occurred in Lambey, was

reinforced by the clerk of the court during the Rule 11 hearing

and was never corrected by the court.            Hammond, 528 F.2d at 16.

                                        11
Accordingly, we vacated Hammond’s guilty plea because counsel’s

erroneous   advice   had    been    “corroborated     by    the   information

supplied by the court.”      Id. at 19.     In Lambey, on the other hand,

the   district   court   provided    the    defendant      with   the   correct

statement at the Rule 11 colloquy, correcting the erroneous advice

given by the defendant’s counsel earlier.           Because those are the

circumstances    here,     Lambey   is     the   relevant    precedent,    and

Weymouth’s reliance on Hammond is misplaced.

      Finding no prejudice, we need not reach the question of

whether Weymouth’s counsel was in fact deficient. The judgment of

the district court is

                                                                    AFFIRMED.




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