[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14510

Non-Argument Calendar

____________________

LENDEN PENDERGRASS, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:19-cv-61637-FAM

____________________

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2 Opinion of the Court 21-14510

Before WILLIAM PRYOR, Chief Judge, JORDAN, and NEWSOM, Circuit 

Judges.

PER CURIAM:

Lenden Pendergrass appeals the denial of his motion to vacate his convictions for conspiracy to possess with intent to distribute fentanyl and possessing with intent to fentanyl and cocaine 

base, 21 U.S.C. §§ 841(a)(1), 846, and possessing a firearm and ammunition as a convicted felon, 18 U.S.C. § 922(g)(1). Pendergrass 

argues that his defense counsel was ineffective because he failed to 

follow Pendergrass’s instructions to appeal his sentence and alternatively failed to adequately consult with Pendergrass about an appeal. We affirm.

I. BACKGROUND 

Pendergrass pleaded guilty to three counts of conviction in 

exchange for the dismissal of eight counts of possessing with intent 

to distribute a controlled substance, 21 U.S.C. § 841(b)(1)(C), and 

one count of possessing a firearm in furtherance of a drug trafficking conspiracy, 18 U.S.C. § 924(c). His written plea agreement contained an appeal waiver and provided that the government would 

recommend a sentence at the low end of his advisory-guideline

range. The government also agreed to evaluate his cooperation 

and, if warranted, to “make a motion prior to sentencing pursuant 

to Section 5K1.1 of the Sentencing Guidelines and/or Title 18, 

United States Code, Section 3553(e), or subsequent to sentencing 

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pursuant to Rule 35 of the Federal Rules of Criminal Procedure.” 

After reviewing the appeal waiver and confirming that Pendergrass 

understood that he faced a mandatory-minimum sentence of 15 

years and a maximum sentence of life imprisonment, the district 

court accepted Pendergrass’s plea of guilty.

Pendergrass’s presentence investigation report initially provided an advisory guideline range of life imprisonment. But Pendergrass, through counsel H. Scott Hecker, made several successful

objections to the report before sentencing. His revised report provided an advisory guideline range of 360 months to life imprisonment.

At his sentencing hearing, Pendergrass successfully objected 

to a role enhancement, which the district court stated it “could 

have gone either way on.” As a result, his advisory guideline range 

was reduced to 292 months to 365 months. The government argued for 292 months, and Pendergrass requested a sentence of 15 

years. The district court sentenced Pendergrass to 292 months of

imprisonment. The district court reminded Pendergrass of his appeal waiver but advised him that any notice of appeal must be filed

within 14 days. Pendergrass confirmed that he understood. Pendergrass did not appeal. 

A year later, Pendergrass timely moved pro se to vacate his 

conviction. 28 U.S.C. § 2255. Pendergrass argued that Hecker was 

ineffective for failing to file a notice of appeal “upon request.” The 

government requested an evidentiary hearing, and the magistrate 

judge appointed Pendergrass counsel. 

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At the evidentiary hearing, Hecker testified that he had practiced criminal law in federal court for 35 years. He was retained by 

Pendergrass’s nephew, Tavaris Welch, and agreed to represent 

Pendergrass in entering a change of plea for $10,000. Hecker produced an invoice showing that he received payments of $6,900,

$2,100, and $500. Although Pendergrass still owed $500, Hecker 

“just let it go at that point.” The goal of the representation was to 

avoid a life sentence because it was “a very severe case” in which 

several deaths were connected to Pendergrass’s acts.

Hecker testified that, after the sentencing hearing, Pendergrass asked, “Can we appeal?” Hecker responded, “Appeal what?” 

and Pendergrass said, “The motherf*****g 24 years the judge just 

gave me.” Hecker advised, “We have an appeal waiver. The judge 

just granted every one of our objections. And, if you appeal, the 

[g]overnment can argue that the objections that we just won were 

improper, and you could end up with a larger sentence.” Hecker 

also cautioned, “[Y]ou have a Rule 35, and I don’t know how your 

appeal would affect your Rule 35.” Hecker said that the discussion

lasted “a few minutes, we talked at that point. And that was it. That 

was the only time I heard about an appeal.”

On cross-examination, Hecker explained that the process of 

getting the balance of his fee paid “had been going on for a couple 

of weeks with [Welch],” so the $2,100 payment he received from 

Welch the day after the sentencing hearing “was just a payment 

that came in” and “had nothing to do with an appeal.” 

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On redirect, Hecker said that if the district court had overruled his role enhancement objection or attributed a death to Pendergrass, then “the case had to go up on appeal.” But because the 

district court sided with Pendergrass on all of his objections, 

Hecker could not think of any nonfrivolous reason to appeal. But 

even then, Hecker would have filed the notice of appeal if Pendergrass had asked him to because “[i]t is not an effort to go do a notice 

of appeal.” Hecker also explained that, in his view, there was a difference between asking whether one “can appeal” and “directing 

someone to appeal.” And Hecker “didn’t take that as an order to 

appeal. That was a question.”

Pendergrass recalled the discussion differently. Pendergrass 

testified that, while in the courtroom after sentencing, he asked 

Hecker, “What can we do now?” and Hecker said, “We can try to 

do an appeal.” Pendergrass said, “Okay. No problem. The money 

will be no problem. I will have my brother and my nephew bring 

you the money you tell them you need.” Later that day, Pendergrass called his brother to confirm that he would pay for the appeal.

And the next day, Pendergrass emailed Hecker and “asked him 

what I was going to do that—my appeal, he says yes.” But Pendergrass said Hecker did not respond to his email, and they had no

other communication during the following two weeks.

On cross-examination, Pendergrass said he requested the 

emails with Hecker six or seven months later, but “they were 

gone.” And although Hecker had explained to him that he faced a 

minimum sentence of 15 years and a maximum sentence of life and 

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the district court confirmed the same at the change of plea hearing, 

Pendergrass had hoped to get 10 years in exchange for cooperating 

with the government. Pendergrass acknowledged that Hecker had 

communicated with him on one occasion after sentencing to apprise him of discussions with the government about filing a motion 

to reduce his sentence based on his substantial assistance.

Although Welch was called to testify, he did not appear. But 

Pendergrass’s brother, Jackie Williams, testified that he and Welch 

met Hecker on two or three occasions to pay him. About one week 

after sentencing, Pendergrass called Williams about needing

money for an appeal. Williams and Welch met Hecker at his law 

office. Welch “did most of the talking.” When Welch gave Hecker 

$2,500, Hecker said, “That is what, for the appeal.” Welch gave the 

receipt to his mother for safekeeping, so Williams did not have it. 

And Williams relayed to Pendergrass “what we [] did.” On cross-examination, Williams acknowledged that he had been convicted of 

at least 15 felonies and said that he did not know that Pendergrass 

had been cooperating with the government. 

The magistrate judge found Hecker’s testimony credible 

and supported by the record. The magistrate judge found that Pendergrass did not direct Hecker to appeal, but instead asked whether 

he could appeal and, based on Hecker’s advice, was dissuaded from 

doing so. The district court adopted the magistrate judge’s finding 

that Hecker adequately consulted with Pendergrass and denied 

Pendergrass’s motion.

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II. STANDARD OF REVIEW 

“In a 28 U.S.C. § 2255 proceeding, we review a district 

court’s legal conclusions de novo and factual findings for clear error.” Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008).

III. DISCUSSION

Pendergrass makes two arguments. First, Pendergrass argues that the magistrate judge clearly erred in finding that he did 

not instruct Hecker to file a notice of appeal. Second, Pendergrass 

argues that Hecker’s discussion with him about an appeal was inadequate under Roe v. Flores-Ortega, 528 U.S. 470 (2000). These 

arguments fail.

The magistrate judge did not clearly err in finding that Pendergrass did not instruct Hecker to file a notice of appeal. The record supports the finding that Hecker’s account was more credible 

based on his lengthy experience as a criminal defense attorney, professional practices, and coherent testimony, and we “allot substantial deference to the factfinder in reaching credibility determinations with respect to witness testimony.” Devine, 520 F.3d at 1287 

(internal quotation marks and alteration omitted).

The record also supports the finding that Hecker adequately

consulted with Pendergrass about appealing. The Supreme Court 

explained in Roe v. Flores-Ortega that counsel has a constitutionally imposed duty to consult” with his client about an appeal “when 

there is reason to think either . . . that a rational defendant would 

want to appeal” or the client “reasonably demonstrated” an interest 

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in an appeal. 528 U.S. at 480. This duty to consult requires counsel 

to advise the client “about the advantages and disadvantages of taking an appeal,” and make a “reasonable effort to discover” whether 

the client wants to appeal, to ensure that any waiver of the right to 

an appeal is knowing and voluntary. Id. at 478. If counsel has consulted with the client, “the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable 

manner only by failing to follow the [client’s] express instructions 

with respect to an appeal.” Id.

Hecker responded to Pendergrass’s question about whether 

an appeal was possible with specific, practical information about 

how he believed an appeal would affect Pendergrass. Hecker advised Pendergrass of several significant disadvantages of appealing, 

including that an appeal might compromise Pendergrass’s chance 

of the government filing a motion to reduce his sentence based on 

his cooperation and that a successful cross-appeal by the government might leave Pendergrass with a longer sentence. And Hecker 

could not describe any advantages of an appeal because he knew of 

none. Hecker succeeded in his objections at sentencing, reducing 

Pendergrass’s advisory guideline range from life imprisonment 

down to a range of 292 to 365 months and leaving no nonfrivolous 

issues to appeal. We are satisfied that Pendergrass received the information necessary to knowingly and voluntarily assert or waive 

his right to appeal.

Pendergrass argues that Hecker failed to make a reasonable 

effort to discover what he wanted to do because Hecker did not 

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recall directly asking Pendergrass if he wanted to appeal regardless 

of the risks. But the Supreme Court explained in Flores-Ortega that 

“imposing ‘specific guidelines’ on counsel is ‘not appropriate.’” Id. 

at 479 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).

Pendergrass’s lack of renewed interest in an appeal after receiving 

the necessary information to guide his decision reasonably evidenced to Hecker that Pendergrass no longer wanted to file an appeal.

We AFFIRM the denial of Pendergrass’s motion to vacate 

his conviction.

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