               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0397n.06

                                       Case No. 18-1957

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                FILED
                                                                           Aug 01, 2019
JERON GASKIN,                                      )
                                                                       DEBORAH S. HUNT, Clerk
                                                   )
       Petitioner–Appellant,                       )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA,                          )      MICHIGAN
                                                   )
       Respondent–Appellee.                        )
                                                   )

       BEFORE: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. Jeron Gaskin was charged with one count of conspiracy

to distribute narcotics and two counts of possession with intent to distribute narcotics. Each of

these counts carried a statutory maximum of twenty years’ imprisonment, for a total maximum of

sixty years’ imprisonment. The government offered Gaskin a plea deal stipulating to a Guidelines

range of 15 to 20 years and recommending a sentence of 17.5 years. Gaskin rejected this offer,

went to trial, and was convicted of all counts, after which he was sentenced to 360 months’

imprisonment, more than the maximum for any individual count. Gaskin moved to vacate his

sentence under 28 U.S.C. § 2255 on the ground that his counsel was constitutionally ineffective

for failing to explain to him that if he rejected the plea deal and was convicted, there was a

possibility that he would be sentenced to consecutive terms of imprisonment. The district court

denied that motion, and for the reasons below, we AFFIRM.
No. 18-1957, Gaskin v. United States


         “Section 2255 provides federal prisoners with a means to secure a second look at the

legality of their conviction or sentence, beyond the direct appeal of right.” Ajan v. United States,

731 F.3d 629, 631 (6th Cir. 2013). “In reviewing a district court’s denial of a motion under Section

2255, we apply a clearly erroneous standard to its factual findings and review its conclusions of

law de novo.” Braden v. United States, 817 F.3d 926, 929 (6th Cir. 2016) (quoting Hyatt v. United

States, 207 F.3d 831, 832 (6th Cir. 2000)). “A finding is ‘clearly erroneous’ when although there

is evidence to support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948). “This standard plainly does not entitle a reviewing court to reverse the finding

of the trier of fact simply because it is convinced that it would have decided the case differently.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).

         Ineffective assistance of counsel claims are governed by the now-familiar Strickland

standard:

         First, the defendant must show that counsel’s performance was deficient. This
         requires showing that counsel made errors so serious that counsel was not
         functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
         Second, the defendant must show that the deficient performance prejudiced the
         defense. This requires showing that counsel’s errors were so serious as to deprive
         the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant has been offered a plea bargain,

his counsel is constitutionally deficient if she tells him that his sentences for multiple counts, if

convicted, cannot run consecutively.1 Magana v. Hofbauer, 263 F.3d 542, 549–50 (6th Cir. 2001).


1
  Gaskin provides out-of-circuit support for the proposition that failing to inform a client of the sentencing
consequences of rejecting a plea agreement is as ineffective as affirmatively misleading the client. See United States
v. Aguiar, 894 F.3d 351, 359 (D.C. Cir. 2018). We have stated that “[a] criminal defendant has a right to expect at
least that his attorney will . . . explain the sentencing exposure the defendant will face as a consequence of exercising
each of the options available [to him].” Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003); see also Rinckey v.
McQuiggan, 510 F. App’x 458, 461 (6th Cir. 2013) (“[T]rial counsel had an obligation to ensure that his client
understood that he faced the possibility of consecutive sentences.”). And here, the government does not argue that
Gaskin’s trial counsel was effective even if he failed to inform Gaskin of the possibility of consecutive sentences, and


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No. 18-1957, Gaskin v. United States


A petitioner is prejudiced by counsel’s deficient performance if “but for the ineffective advice of

counsel there is a reasonable probability that the plea offer would have been presented to the court

(i.e., that the defendant would have accepted the plea and the prosecution would not have

withdrawn it in light of intervening circumstances), that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer’s terms would have been less severe

than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 566 U.S. 156,

164 (2012).

         The parties disagree both over whether Gaskin’s trial counsel informed him that the

sentences for each count could run consecutively and, if trial counsel did so inform Gaskin, he has

shown that he would have accepted the plea.

         At a hearing that occurred after Gaskin was convicted but before he was sentenced, the

government off-handedly mentioned that Gaskin was facing “up to potentially 60 years because

he was convicted on all three counts.” Immediately upon hearing this, Gaskin spoke up, telling

the court that “I didn’t understand about the 60 years part. I didn’t understand what he just meant

by that.” Gaskin then said:

         Your honor, I said this was my first time hearing, after the case was done, that my
         cases was trying to get ran consecutive. I never knew nothing what consecutive
         mean. Was never told before trial by my prosecutors or my lawyers or nobody that
         it was a possibility it could get ran consecutive.

         Every time I asked my lawyer, I was told this was one charge and that my cases
         was all getting ran under a 20-year max and my plea was 17 years. So, I couldn’t—
         17 years and 20-year max, that’s why I went to trial, sir. And now I’m hearing 60
         years and I’m really confused in this courtroom, sir. I never heard of this.

         At an evidentiary hearing before the district court, Gaskin testified that after reading the

indictment he understood that the maximum sentence on each count was 20 years, so he thought


we thus assume for the purpose of this opinion that if Gaskin can show that his trial counsel failed to inform him of
the possibility of consecutive sentences, Gaskin has satisfied the first Strickland prong.


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No. 18-1957, Gaskin v. United States


that he was facing a maximum of 20 years’ imprisonment. Gaskin also testified that when his trial

counsel, Mr. Randolph, presented the plea agreement, Gaskin “asked him like what’s the most

they can give me, and that’s when he had told me like they can give you 20” and that Randolph

told Gaskin that he should accept the plea agreement because “[Gaskin] can get a couple more

years, we might as well just go ahead.” This testimony was broadly corroborated by Gaskin’s

mother and sister.

           Against this evidence, the district court weighed the fact that at each of his three

arraignments, Gaskin had told the court that he understood the indictment and the potential penalty

for each count. And at his first arraignment, the magistrate judge told Gaskin that each count

carried a maximum of 20 years’ imprisonment and said “[n]ot that they are necessarily concurrent

penalties but it is the same maximum penalty under the statute.”

           Also, although Randolph did not testify that he had specifically told Gaskin that he was

facing a maximum of 60 years, Randolph did testify that he “told Mr. Gaskin that a sentence of 20

years is better than life” and explained that statement as “[m]eaning that if he, if he was found

guilty and allowed the judge to sentence him, that he possibly could spend the rest of his life in

prison, whether that—that didn’t necessarily mean that the sentence would be life, but it would be

a lot of years.” This cohered with an earlier affidavit signed by Randolph in which he wrote that

“[d]uring discussions with Mr. Gaskin to persuade him to accept the Rule 11 agreement, I told him

that 15–20 years is better than a life sentence, Mr. Gaskin again refused, intimating that

(paraphrasing) 20 years is like a life sentence to him.”2




2
    Gaskin denied having made this statement.


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No. 18-1957, Gaskin v. United States


         After considering all of the testimony and the other evidence proffered to the court, the

district court determined that “Gaskin has not shown that his attorney performed deficiently during

plea bargaining.” Gaskin’s first hurdle on appeal is challenging this factual determination.

         Gaskin “faces a steep climb in making this argument, needing to leave us ‘with the definite

and firm conviction that a mistake has been committed.’” Christopher v. United States, 831 F.3d

737, 739 (6th Cir. 2016) (quoting U.S. Gypsum, 333 U.S. at 395). “While ‘we review transcripts

for a living,’” the district court “assesses live witnesses for a living, and we must account for this

‘ring-side perspective’ when reviewing a trial judge’s findings of fact.” Id. (quoting United States

v. Poynter, 495 F.3d 349, 351–52 (6th Cir. 2007)). In cases such as this, where two parties testify

to different versions of the facts, so long as both versions have evidence to support them, “the

factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574

(citations omitted).

         Here, the district court specifically found Randolph’s testimony credible and also that

Gaskin was not a credible witness, in part because of his “obvious incentives to be untruthful.”3

Because there is evidence supporting Randolph’s testimony, the district court’s determination that

Randolph was more credible cannot be disturbed. And having reviewed the remaining evidence

proffered by the parties before the district court, we cannot say that the district court clearly erred

in determining that Randolph informed Gaskin of the potential sentence should he go to trial.




3
  Gaskin spends a not insignificant portion of his opening brief arguing that the district court’s finding that Gaskin’s
testimony was not credible “runs afoul of a 140 year-old statute and [S]upreme [C]ourt case law.” The gist of his
argument appears to be that, at one point, the common law prohibited the testimony of interested parties; American
jurisprudence has since rejected that principle; and the district court’s finding that Gaskin was not credible because of
his interest in the outcome was an illegitimate readoption of the principle. But the principle is well recognized that
“[b]ias may be induced by a witness’ . . . self-interest” and “[p]roof of bias is almost always relevant because
the . . . finder of fact and weigher of credibility[] has historically been entitled to assess all evidence which might bear
on the accuracy and truth of a witness’ testimony.” United States v. Abel, 469 U.S. 45, 52 (1984).


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No. 18-1957, Gaskin v. United States


Because Gaskin has not therefore shown the first prong of Strickland, we need not address the

second prong, and we AFFIRM.




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