### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60427 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. KEVIN DEWAYNE WILLIAMS, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:10-CV-34

Before SMITH, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM: * Kevin Dewayne Williams, federal prisoner # 93929-022, a ppeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging his guilty plea conviction for attempting to commit extortion affecting interstate commerce in violation of 18 U.S.C. § 1951. A judge of this court granted Williams a certificate of appealability o n t h e issue whether Williams was entitled to an evidentiary hearing on his claim that his trial counsel rendered inef f e c tive assistance in U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 19 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60427 Document: 00512026703 Page: 1 Date Filed: 10/19/2012No. 11-60427

informing him prior to his guilty plea that his sentencing guidelines range of imprisonment would be about 15 to 21 months. To e s t ab li s h th at hi s attorn ey performed ineffectively, Williams mus t s ho w both that his c o unsel’s performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To show prejudice in the context of a gu i l t y p l ea, Williams must establish that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). A prisoner’s allegation that he would not have pleaded guilty must be reasonable. Armstead v. Scott , 37 F.3d 202, 210 (5th Cir. 1994). A failure to establish either deficient performance or prejudice defeats the claim. Strickland , 466 U.S. at 697. The district court sho u l d c onduct an evidentiary hearing only if the defendant produces “independent indicia of the likely merit of [his] allegations.” United States v. Edwards , 442 F.3d 258, 264 (5th Cir. 2006) (internal quotation marks omitted). “Once such independent evidence is presented, ‘[a] motion brought under

. . . § 2255 can be denied without a hea r i n g o n ly if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.’” United States v. Cavitt , 55 0 F

. 3 d 4 3 0, 442 (5th Cir. 2008). This court reviews the denial of a § 2255 motion without an evidentiary hearing for abuse of discretion. United States v. Cervantes , 132 F.3d 1106, 1110 (5th Cir. 1 998). Assuming, arguendo , that trial counsel provided ineffective assistance in misadvising Williams of his sentencing ex p o s ure, the district court correctly determined that Williams had not demonstrated a reasonable probability that but for the misadvice, he would have gone to trial. A s t h e district court explain e d , th e evi de nc e a gainst Williams was strong and his entrapment defense

was not viable. Even if arguably misadvised about his potential s e n t encing range, Williams was aware that he faced a potential 20-year sentence and that the government was requesting sentencing enhancements that would (and did)
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markedly increase his guideline range. Thus informed, Williams opted to plead guilty, knowing that doing so would give him the benefit of a 2-level reduction in base offense level and might result in a below-guidelines sente n c e . Because the record does not support the defendant’s generalized assertion that his plea

was involuntary, he has not demonstrated that the district c ourt abused its discretion in denying this claim without conducting an evidentiary hearing. See U n ited States v. Walker , 68 F.3d 931, 934 (5th Cir. 1995); United States v . Mackay , 339 F. App’x 367, 369 (5th Cir. 200 9) (per curiam). The judgment of the district court is AFFIRMED.

3 Case: 11-60427 Document: 00512026703 Page: 3 Date Filed: 10/19/2012