     Case: 13-10359      Document: 00512734131         Page: 1    Date Filed: 08/14/2014




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

                                    No. 13-10359
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         August 14, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

SANTIAGO VALDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-868
                             USDC No. 4:11-CR-65-2


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Santiago Valdez appeals the district court’s denial of his 28 U.S.C. § 2255
motion challenging his guilty-plea conviction for conspiracy to distribute a
controlled substance and his resulting 360-month sentence. Valdez obtained a
certificate of appealability (COA) from this court authorizing him to appeal the
issues whether the district court erred in dismissing without an evidentiary



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10359

hearing Valdez’s claims that counsel rendered ineffective assistance (1) by
failing to “adequately counsel [Valdez] on the relevant law to the sentence he
was likely to receive,” and (2) by “promising him a sentence that he was not
likely to receive.”
      We review the district court’s factual findings for clear error and legal
conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
To prove that his counsel was ineffective, Valdez must show that counsel’s
performance was deficient and that his deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
      Valdez’s claim that counsel failed to explain the application of the
Sentencing Guidelines, including that he could be sentenced as a career
offender, is unavailing.   Specifically, regardless whether counsel failed to
advise Valdez of his true sentencing exposure, the record reflects that Valdez
understood that he faced a potential maximum sentence of 40 years when he
entered his guilty plea. Thus, he understood the consequences of pleading
guilty. United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990).
      In addition, even if counsel’s explanation of the Guidelines was deficient,
Valdez has not shown prejudice because he has not shown that there is a
reasonable probability that, but for counsel’s alleged error, he would not have
pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In that regard, by
pleading guilty, Valdez received a three-level reduction for acceptance of
responsibility that he would not have received if he had proceeded to trial,
Valdez admitted the facts contained in the factual resume, and the case against
him was strong. See Armstead v. Scott, 37 F.3d 202, 210-11 (5th Cir. 1994).
      Valdez’s claim that counsel promised that he would receive a 10-year
sentence if he cooperated with the Government is likewise unavailing. In the
district court, Valdez did not present any independent indicia of the likely



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                                  No. 13-10359

merit of his allegations because he did not present affidavits from reliable third
parties establishing the terms of the alleged promise, the time and place of the
promise, or the identity of any eyewitnesses to the promise. See Bond v. Dretke,
384 F.3d 166, 168 (5th Cir. 2004); see also United States v. Cervantes, 132 F.3d
1106, 1110 (5th Cir. 1998). The affidavit executed by his sister provided no
support as it lacked in specificity and facts; therefore, it did not establish that
counsel clearly and unequivocally promised that Valdez would receive a 10-
year sentence if he cooperated. See Bond, 384 F.3d at 168. In addition,
Valdez’s sworn declaration at rearraignment that no one made any promises
to him in exchange for his guilty plea is afforded a strong presumption of verity.
See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Finally, as explained
above, Valdez cannot establish that he would not have pleaded guilty and
instead would have insisted on going to trial. See Bond, 384 F.3d at 168.
      The evidence presented by Valdez is inconsistent with the bulk of his
conduct, including his presumptively truthful testimony at rearraignment,
which clearly refutes Valdez’s allegation that counsel promised him a 10-year
sentence.   Such inconsistency is further underscored by the fact that at
sentencing Valdez did not dispute the guidelines range or the application of
the career offender enhancement, nor did he dispute counsel’s statement that
he had reviewed the presentence report with Valdez. After the court imposed
a 360-month sentence, Valdez did not alert the court that he was allegedly
promised a 10-year sentence, and he did not move to withdraw his guilty plea
on that basis. Consequently, Valdez has not shown that the district court erred
in rejecting his claims without an evidentiary hearing. See Cervantes, 132 F.3d
at 1110.
      Valdez also argues that counsel was ineffective for failing to secure a plea
agreement with the Government, for failing to inform the district court that he



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had cooperated with the Government, and for allowing the Government to
sentence him based on self-incriminating statements in violation of the
cooperation agreement. Our review is limited to issues for which a COA has
been granted. See 28 U.S.C. § 2253(c). The foregoing issues are uncertified
and therefore cannot be considered.
     Accordingly, the district court’s judgment is AFFIRMED.          Valdez’s
motion for the appointment of counsel is DENIED.




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