                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1499
                                    ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *   Appeal from the United States
      v.                                   *   District Court for the
                                           *   Southern District of Iowa.
Jennifer Regenos,                          *
                                           *
             Appellant.                    *

                                    ___________

                              Submitted: March 14, 2005
                                 Filed: April 28, 2005
                                  ___________

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Jennifer Regenos appeals from the district court’s1 denial of her motion to
vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255, as well as from
the district court’s denial of an evidentiary hearing to address the claims brought in
the § 2255 motion. We affirm.




      1
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
                                           I.
       Regenos pleaded guilty to one count of conspiracy to distribute and possess
with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. Her
original plea agreement with the government provided that, in return for her plea, a
stipulation that she was an organizer or leader of the conspiracy, and a waiver of her
right to seek an acceptance of responsibility reduction, the government would agree
to a sentence of 210 months and would withdraw its previous notice (filed pursuant
to 21 U.S.C. § 851) informing the court that Regenos had a prior narcotics felony
conviction. The notice, if not withdrawn, would have increased the mandatory
minimum sentence for Regenos’s crime from ten years to twenty years. See 21
U.S.C. §§ 841(b)(1)(A), 846, 851.

       Prior to her plea hearing, however, Regenos and the government modified the
plea agreement. The modified agreement deleted the 210-month sentence provision,
the government’s promise to withdraw the notice of prior conviction, and Regenos’s
stipulation regarding her role in the offense. The modified agreement also restored
Regenos’s right to seek an acceptance of responsibility reduction and stated that the
mandatory minimum sentence for Regenos’s offense of conviction (without the
withdrawal of the government notice) was twenty years (240 months) rather than ten.
Each change in the original agreement was initialed by the prosecutor, Regenos’s
attorney, and Regenos herself. See App. to Appellant’s Br. at 9-11.

       At Regenos’s plea hearing, the district court informed her that the minimum
sentence she would receive under the modified agreement was the mandatory
minimum of twenty years in prison and that the mandatory minimum would most
likely be higher than the sentence mandated by the Guidelines. Plea Tr. at 9.
Regenos indicated that she understood these facts, and she further acknowledged that
the mandatory minimum sentence had been explained to her. Id. at 9-11. She
nonetheless affirmed her desire to enter a guilty plea. Id. at 11. The district court
subsequently sentenced her to the mandatory minimum twenty-year sentence. On

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appeal, we rejected Regenos’s contention that the mandatory minimum sentence
constituted cruel and unusual punishment. United States v. Regenos, 54 Fed.Appx.
245 (8th Cir. 2002). Regenos then filed a motion for post-conviction relief pursuant
to 28 U.S.C. § 2255, alleging that her counsel provided her with ineffective assistance
during the plea negotiation process and that the government failed to file a motion for
a downward departure. The district court denied the motion and Regenos’s
accompanying request for an evidentiary hearing. We granted a certificate of
appealability on the ineffective assistance of counsel claim.

                                          II.
      When addressing post-conviction ineffective assistance claims brought under
§ 2255, we review the ineffective assistance issue de novo and the underlying
findings of fact for clear error. Covey v. United States, 377 F.3d 903, 906 (8th Cir.
2004). We review the district court’s decision to deny an evidentiary hearing for
abuse of discretion. Koskela v. United States, 235 F.3d 1148, 1149 (8th Cir. 2001).

       Regenos contends that her trial counsel provided ineffective assistance because
he failed to inform her that the sentence prescribed under the modified plea agreement
(240 months) was longer than that prescribed under the original agreement (210
months) and provided no benefit to her in return. Claims of ineffective assistance of
counsel arising from plea negotiations are reviewed under the two-part test laid out
in Strickland v. Washington, 466 U.S. 668 (1984). Hill v. Lockhart, 474 U.S. 52, 57
(1985). Thus, in order to prove her claim, Regenos must show both that her counsel’s
performance was deficient—that her “counsel’s representation fell below an objective
standard of reasonableness”—and that such deficient performance prejudiced her
defense—that there is “a reasonable probability that, but for [her] counsel’s
unprofessional errors,” the result of the plea negotiation process would have been
different. Strickland, 466 U.S. at 687, 688, 694.




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       Even if we assume that Regenos’s counsel performed deficiently during the
plea negotiation process, her ineffective assistance claim fails because she cannot
prove that the result of the plea negotiations would have been different had her
counsel performed adequately (i.e., that she would not have accepted the modified
agreement). See Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (where
defendant fails to satisfy one of Strickland’s two parts, the court need not address the
other part). The information that her counsel would have provided—express advice
that the modified agreement called for a greater sentence than the original
agreement—was fully supplied to her throughout the plea process. The district court
explicitly informed Regenos during the plea colloquy that the minimum sentence that
it could impose was 20 years (240 months), and Regenos indicated that she
understood that fact. Moreover, Regenos personally initialed each modification to
the original plea agreement, and thus she was aware of and assented to every
difference between the terms of the original agreement and those in the modified
agreement, including the increased sentencing exposure.

       The record also indicates that Regenos received some benefit from the
modified plea agreement in that it did not require her to cooperate with the
government in any way. Although Regenos disputes on appeal the government’s
assertion that the original plea agreement required cooperation, it is notable that, in
her original § 2255 motion in the district court, Regenos stated that it “seem[ed] clear
that the last-minute changes in the plea agreement presupposed that some sort of
cooperation plea agreement was contemplated.” Indeed, it is difficult to understand
why the government would have made reference at Regenos’s plea hearing to the fact
that the modified plea agreement reflected a “noncooperation plea agreement” if the
original agreement did not in fact contemplate cooperation on Regenos’s part. See,
e.g., Plea Tr. at 3. Lending further support to the government’s assertion that the
original plea agreement required Regenos’s cooperation is the district court’s
statement in its order denying § 2255 relief that “[t]he government accurately
summarize[d] the benefits [Regenos] received,” including the removal of the

                                          -4-
cooperation requirement. D. Ct. Order of Dec. 18, 2003, at 3. We find nothing in the
record that would cause us to question the district court’s account of the
circumstances that gave rise to the modified plea agreement. Regenos’s plea colloquy
and her written approval of each modification to the plea agreement further indicate
that she understood that the modified plea agreement removed the cooperation
requirement. We are accordingly satisfied that, despite Regenos’s now-apparent
regret that she chose to enter into and plead guilty in accordance with the modified
plea agreement, she was on notice of the consequences of doing so. Thus, any
additional advice from her attorney regarding those consequences would not have
affected her decision to accept the modified plea.2

       The district court also did not abuse its discretion in denying Regenos’s request
for an evidentiary hearing. A defendant is entitled to a hearing on a § 2255 motion
“unless the motion, files, and record conclusively show” that the defendant is not
entitled to relief. Koskela, 235 F.3d at 1149. “A § 2255 motion ‘can be dismissed
without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle
the petitioner to relief, or (2) the allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.’” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003)
(quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). Here,
Regenos’s allegation that she was prejudiced by her counsel’s alleged deficiencies in
performance is contradicted by the record. Accordingly, the district court properly



      2
        Regenos cites United States v. Day, 969 F.2d 39 (3d Cir. 1992), in support of
her claim. Day, however, involved a defendant’s choice to go to trial—a decision that
does not require a plea colloquy—rather than to accept a plea. Id. at 42. The
defendant in Day, who allegedly rejected a plea solely on the basis of his counsel's
erroneous advice, id., is thus not similarly situated with Regenos, who was fully
informed of the consequences of the plea modification both by the district court and
by her own review and written approval of the modified plea itself.

                                           -5-
exercised its discretion to dismiss Regenos’s § 2255 motion without first holding an
evidentiary hearing.

      The judgment is affirmed.
                     ______________________________




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