 United States Court of Appeals
            For the Eighth Circuit
        ___________________________

                No. 12-2231
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

                Carlton P. Strother

      lllllllllllllllllllll Defendant - Appellant
         ___________________________

                No. 12-2347
        ___________________________

                Carlton P. Strother

        lllllllllllllllllllllMovant - Appellant

                          v.

             United States of America

      lllllllllllllllllllllRespondent - Appellee
                      ____________

     Appeal from United States District Court
for the Western District of Missouri - Kansas City
                 ____________
                             Submitted: January 17, 2013
                              Filed: February 27, 2013
                                   [Unpublished]
                                   ____________

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
                       ____________

PER CURIAM.

       Carlton Strother was convicted of two counts of conspiracy, thirteen counts of
aggravated identity theft, and ten counts of access device fraud, in violation of 18
U.S.C. §§ 371, 1028, 1028A, and 1029. He was sentenced to 234 months’
imprisonment. After his convictions and sentence were affirmed on direct appeal,
United States v. Jenkins-Watts, 574 F.3d 950 (8th Cir. 2009), Strother moved to
vacate, set aside, or correct his sentence. Strother argued, among other things, that he
had been denied his Sixth Amendment right to effective assistance of counsel and that
his sentence was illegal. Following an evidentiary hearing, the district court1
corrected Strother’s sentence but otherwise denied the motion. The district court later
granted a certificate of appealability on two issues: (1) whether trial counsel failed to
convey a plea offer and (2) whether the district court sentenced Strother above the
statutory maximum for access device fraud. We affirm.

                                    I. Background

       In August 2006, a grand jury returned a thirty-seven count superseding
indictment, alleging that Strother, along with numerous co-defendants, had engaged
in fraudulent schemes involving the use of stolen identities to obtain credit and loans.
Shortly thereafter, attorney Kenton Hall was appointed to represent Strother.

      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

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According to Hall, Strother planned to exercise his right to a jury trial: “Mr. Strother
told me early on in our relationship he wasn’t interested in pleading guilty. He didn’t
want me to bring him any plea offers. He was only interested in resisting the case and
going all the way.” Hall testified that the government made no plea offers during his
representation of Strother, but that if it had, Hall would have relayed them to his
client. In January 2007, Strother terminated Hall and retained Martin Warhurst as his
attorney.

       Warhurst offered a two-level fee arrangement, charging $15,000 if the case
“was disposed of without trial by either guilty plea or dismissal” or $30,000 if the case
went to trial. Strother paid Warhurst $30,000. Warhurst and Strother discussed the
case numerous times, both in person and over the telephone. Warhurst testified that
he believed that the government’s case was strong, and he told Strother so. According
to Warhurst, Strother did not want to plead guilty and did not want to pursue a plea
agreement: “[Strother] was always adamant that he wanted to go to trial. I believe it
was my obligation to explore other options and he and I discussed that.”

       Warhurst and Assistant United States Attorney John Cowles occasionally
discussed whether Strother would plead guilty. Warhurst asked Cowles to calculate
Strother’s possible sentencing range under the United States Sentencing Guidelines
(Guidelines). By e-mail dated May 6, 2007, Cowles submitted his calculations to
Warhurst, explaining that if Strother pleaded guilty, the government would be willing
to forego filing additional charges against him. Cowles estimated that Strother would
face 6.75 years if he pleaded guilty pursuant to a plea agreement, between 5.8 and
8.75 years if he pleaded guilty without an agreement, and 10.5 years or more if he was
found guilty by a jury. Warhurst testified that he explained the Guidelines to Strother,
that he printed the e-mail for Strother’s review, and that he recommended pursuing a
plea agreement. When asked whether he found Cowles’s calculations to be accurate,
Warhurst replied, “I thought, frankly, it underestimated [Strother’s] risk at trial.”



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       A jury convicted Strother on the charges set forth above. At sentencing, the
district court determined that Strother’s Guidelines sentencing range was between 168
and 210 months’ imprisonment. The district court concluded, “I think that a sentence
at the top end of the guideline range and one consecutive two-year sentence is
sufficient to address all of the statutory concerns [in 18 U.S.C. § 3553(a)].” See 18
U.S.C. § 1028A(a)(1) and (b) (mandating a consecutive two-year sentence for
aggravated identity theft). The district court then pronounced a 60-month sentence
on the conspiracy counts (counts 1 and 2) to run concurrent with a 210-month
sentence on the access device fraud counts (counts 20-30) and a consecutive 24-month
sentence on the aggravated identity theft counts (counts 3, 4, 6-14, 17, and 18),
resulting in a total sentence of 234 months’ imprisonment. Fifteen days later, the
district court entered judgment, which maintained the 234-month term of
imprisonment, but revised the sentence as follows:

      The defendant is hereby committed to the custody of the United States
      Bureau of Prisons to be imprisoned for a total term of 30 months on
      count 1 to run concurrently to count 2, but to run consecutively to all
      other counts; 60 months on count 2 to run concurrently to all counts; 180
      months on counts 20-30 to run concurrently to all counts; and 24 months
      on counts 3,4, 6-14, 17 and 18 to run concurrently to each other, but
      consecutively to counts 1, 2, 20-30.

       In October 2010, Strother moved to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255, raising eleven grounds for relief. The district court granted
a hearing on two grounds: (1) whether counsel failed to convey a plea offer to him
and (2) whether he was sentenced above the 15-year statutory maximum term of
imprisonment for access device fraud. In support of its opposition to the motion, the
government filed an affidavit by Warhurst, wherein Warhurst stated that he had
engaged in plea negotiations with the government and had “kept Mr. Strother advised
of all negotiations and relayed all plea offers.” The parties ultimately decided to
submit the sentencing issue on the basis of their briefs. At the evidentiary hearing,


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Strother, Hall, and Warhurst testified regarding the plea offer. Strother sought to call
upon Cowles to testify, but the district court did not compel his testimony, finding that
it would be irrelevant.

      All Mr. Cowles can say is that I prepared the e-mail and I caused it to be
      transmitted to Mr. Warhurst. And at some point Mr. Warhurst
      communicated back to him that the plea offer was not accepted. That
      doesn’t in any way tend to show that Mr. Warhurst failed to
      communicate it to Mr. Strother, that Mr. Strother didn’t receive it or
      didn’t understand it[,] or that Mr. Strother either wanted to accept it or
      reject it.

The district court also struck from the record an affidavit Cowles had submitted.

       Strother testified that he had committed the offenses of conviction, but that he
“didn’t know [he] could just stand up and plead guilty.” According to Strother,
neither attorney told him that he could enter a guilty plea with the court or engage in
plea negotiations with the government. When asked why he did not know he could
enter a guilty plea, when he had done so in other cases, Strother replied, “I’ve never
been in federal court before[.]” Strother also testified that Warhurst did not explain
the potential sentence he faced and did not share the May 6, 2007, e-mail with him,
despite the fact that Strother had admitted his guilt to Warhurst. Strother testified that
he would have accepted the plea offer set forth in the government’s e-mail had he
known about it.

       The district court found that Warhurst had communicated the plea offer to
Strother and that Strother had rejected it because he believed that he would prevail at
trial. With respect to the sentencing issue, the district court concluded that the 210-
month sentence for access device fraud was illegal and that the entry of judgment
could not correct its oral pronouncement of sentence because it was untimely. See 18
U.S.C. § 1029(c)(1)(A)(ii) (limiting the term of imprisonment to 15 years for certain


                                           -5-
offenses set forth under subsection (a)); Fed. R. Crim. P. 35 (2009) (permitting the
court to correct “arithmetical, technical, or other clear error[s]” within 7 days of
sentencing). The district court then corrected Strother’s sentence, consistent with its
earlier judgment, and ordered the clerk to file an amended judgment and commitment
order, stating, “The Court’s original intention was to sentence Strother to 234 months’
imprisonment, and the Court continues to believe that 234 months is the appropriate
total sentence.” D. Ct. Order of May 5, 2012, at 4.

                                   II. Discussion

                        A. Ineffective Assistance of Counsel

       We review de novo the district court’s determination that counsel did not render
ineffective assistance to the defendant. Covey v. United States, 377 F.3d 903, 906
(8th Cir. 2004). “[F]indings of underlying predicate facts are reviewed for clear
error.” Id.

       The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. To establish a claim for ineffective assistance of counsel, a
§ 2255 movant must demonstrate that counsel’s representation was deficient and that
he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The Supreme Court has held that “defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may
be favorable to the accused.” Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012).
Defense counsel’s performance is thus deficient if counsel allows a formal plea offer
“to expire without advising the defendant or allowing him to consider it[.]” Id.




                                         -6-
       Strother argues that Warhurst’s performance was deficient because he failed to
communicate the plea offer.2 The district court found that Warhurst’s testimony to the
contrary was credible. The undisputed fact that Strother paid the $30,000 fee shortly
after retaining Warhurst, as well as Hall’s testimony that Strother was adamant about
proceeding to trial, corroborate counsel’s testimony. We see no clear error in the
district court’s finding that Warhurst communicated the plea offer to Strother.
Strother thus has failed to show that counsel’s performance was deficient.

       Strother contends that the district court committed reversible error when it
found Cowles’s testimony irrelevant. He argues that Cowles could have explained
what occurred after the May 6, 2007, plea offer was extended. Cowles’s testimony,
however, would have been limited to whether the offer was accepted or rejected. Any
testimony regarding what Warhurst said in response to the plea offer would constitute
inadmissible hearsay. Strother also argues that Cowles knew whether other plea offers
were extended. The only evidence implying that there might have been more than one
offer was Warhurst’s statement that he “kept Mr. Strother advised of all negotiations
and relayed all plea offers.” Warhurst testified that the May 6, 2007, e-mail
constituted the only plea offer and that, to the extent his affidavit implied otherwise,
it was incorrect. In light of the evidence, the district court did not err in declining to
compel Cowles’s testimony.

                                B. Corrected Sentence

      Strother argues that a presumption of vindictiveness applies to his corrected
sentence because the district court increased the sentence without hearing additional
evidence or offering any explanation. See North Carolina v. Pearce, 395 U.S. 711,
726 (1969) (holding that “whenever a judge imposes a more severe sentence upon a


      2
       We assume without deciding that the May 6, 2007, e-mail constituted a formal
plea offer.

                                           -7-
defendant after a new trial, the reasons for his doing so must affirmatively appear”),
overruled in part by Alabama v. Smith, 490 U.S. 794, 795 (1989) (holding that “no
presumption of vindictiveness arises when the first sentence was based upon a guilty
plea, and the second sentence follows a trial”). Strother contends that the vindictive
sentence violates the Due Process Clause and must be reduced by 30 months. Strother
has not explained how his sentence was increased, however, when neither the total
sentence nor the individual sentences are greater than they were in the district court’s
oral pronouncement of sentence.

       It is undisputed that the 210-month sentence for access device fraud was illegal.
In correcting Strother’s sentence, the district court reduced the term of imprisonment
to 180 months, the maximum term allowed under the statute. See 18 U.S.C.
§ 1029(c)(1)(A)(ii). It also reduced the 60-month sentence for count one to 30
months’ imprisonment and ordered it to run consecutively to the 180-month sentence.
The sentence thus was restructured in such a way that neither the total sentence, nor
the sentences on the individual counts of conviction, were increased. See United
States v. Gruenberg, 53 F.3d 214, 215 (8th Cir. 1995) (per curiam) (concluding that
“when the district court corrects an illegal concurrent sentence under Rule 35, the
court may order the corrected sentence to run consecutively to legal sentences on other
counts, at least where—as here—the net term of imprisonment originally imposed is
not lengthened”). Accordingly, no presumption of vindictiveness attaches to the
corrected sentence, and thus no Due Process Clause violation occurred.

                                          III.

      The judgment is affirmed.
                      ______________________________




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