NOT RECOMMENDED FOR PUBLICATION File Name: 19a0317n.06
No. 17
- 6 258 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BEAU C. VAUGHAN, Petitioner

- Appell ant,

v. UNITED STATES OF AMERICA, Respondent

- Appell ee . ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
OPINION

Before: BOGGS , BATCHELDER , and BUSH , Circuit Judges. JOHN K. BUSH, Circuit Judge. On July 3, 2018 , our Court granted a certificate of appealability to Petitioner

- Appellant Beau Vaugh a n as to his claim that he received ineffective assistance of counsel when his attorney failed to communicate plea offers. Upon a review of the record and the arguments m ade by the parties in this appeal, we AFFIRM

. I. BACKGROUND
In March 2010 , Vaugh a n was arrested on state charges for conspiring to distribute or possessing with intent to distribute 100 kilograms or more of marijuana

. Vaugh a n hired attorney John Colley t o represent him. Vaugh a n was then brought into federal custody in July 2010 after his federal indictment , and Colley continued to represent him. As part of the criminal proceedings against him, Vaugh a n filed a motion to suppress evidence obtained by the police

. The districtNo. 17

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court denied the suppression motion , and a jury convicted Vaugh a n of the charge in the indictment. The district court sentenced Vaugh a n to a term of 300 months of imprisonment. Vaugh a n appealed the denial of his motion to suppress and his conviction, and in 2013, this Court affirmed. United States v. Vaugh a n , 512 F. App’x 459 (6th Cir. 2013). The Supreme Court denied Vaugh a n’s petition for a writ of certiorari, and his conviction became final. Vaugh a n v. United States , 570 U.S. 925 (2013). In 2014, Vaugh a n filed a Motion to Vacate Judgment Pursuant to 28 U.S.C. § 2255 , raising numerous claims

. One of these claims was that Colley failed to inform Vaugh a n about plea negotiations with the government, which led to the “reject[ion of] a plea offer . . . with a recommended sentence of twelve years.” R. 1, Page ID 15. The district court denied Vaugh a n’s § 2255 M otion except for his claim of ineffective assistance of counsel by Colley. The district court determined that “an evident iary hearing [was] necessary to resolve whether [Colley] effectively communicated [the Government’s] fifteen

- year plea offer 1 and the consequences of rejecting the offer.” R. 14, Page ID 127

. On April 7, 2017, the court held a hearing in which both Vaugh a n and Colley testified . On September 25, 2017, the court issued its findings of facts and legal conclusions, holding that Vaugh a n did not demonstrate that he was prejudiced by Colley’s actions because Vaugh a n ha d not shown facts indicating there

was a reasonable probability that he would have accepted the offer

. The district court denied a certificate of appealability

. Vaugh a n applied to our Court for a certificate of appealability for all of the issues he raised in his initial § 2255 Motion . We denied the certificate of appealability , except for the issue of ineffective assistance of counsel.

1 At some point, the plea offer changed from twelve to fifteen years. The record is unclear as to why this change occurred.No. 17

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3 II. STANDARD OF REVIEW Vaugh a n appeals the di strict court’s denial of his Motion to Vacate under § 2255. “In reviewing a district court’s denial of a mo tion under Section 2255, we apply a clearly erroneous standard to its factual findings and review its conclusions of law de novo.” Hyatt v. United States , 207 F.3d 831, 832 (6th Cir. 2000) (citation omitted). “During plea negotiations defendants are ‘en titled to the effective assistance of competent counsel.’” Lafler v. Cooper , 566 U.S. 156, 162 (2012) (citing McMann v. Richardson , 397 U.S. 759, 771 (1970)). “To demonstrate that his counsel was constitutionally ineffective under Strickland v. Washington , 466 U.S. 668 (1984), [Vaughan] must make two showings: (1) [his] counsel’s performance was deficient, or put differently, fell below an objective standard of reasonableness; and (2) the performance prejudiced [Vaughan].” King v. Westbrooks , 84 7 F.3d 788, 795 (6th Cir. 2017) (quoting United States v. Mahbub , 818 F.3d 213, 230

– 31 (6th Cir. 2016)) (internal quotation marks omitted).
III. DISCUSSION This Court granted a certificate of appealability to determine whether Vaugh a n received ineffecti ve assistance of counsel during “communicat[ion of the] plea offers .” COA. R. 15 (emphasis added)

. As there were two plea offers provided by the Government here, the issue s are whether Colley informed Vaugh a n about the plea offers and , if not, whether Vaugh a n was prejudiced.
A. The Plea Offers After denial of the suppress ion motion , Colley entered into plea discussions with the
Government

. Colley testified at the evidentiary hearing that he had previously been Vaugh a n ’s counsel in a case in which Vaugh a n had provided substantial assistance to the Government byNo. 17

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testifying against certain individuals

. Accordingly, Vaugh a n was interested in staying out of the federal system, where these individuals were now incarcerated, and in plea bar gaining with the Government for lesser prison time in the instant case

. Vaugh a n and Colley differ about the next part of this conversation. According to Colley, Vaugh a n authorized Colley to accept a plea deal for ten years or less of imprisonment , and a sked Colley to start off negotiations with a five

- year term of imprisonment

. According to Vaugh a n, he did not give Colley any instructions to accept certain offers or reject others. Vaugh a n also testified that at this point, Colley had not told him what his Sentencing Guidelines range was. Colley could not recall “a specific instance” in which he told Vaugh a n about his sentencing range, though Colley said he “typically” tells his clients early on. In March 2011, Colley emailed the Government, asking fo r “a sentence in the 5+ year range.” R. 6

- 2, Page ID 66. The Government attorney responded , stating that he could not agree to this sentence, but “[i]f [Vaugh a n] is interested in a plea agreement which would result in a sentence of 15 years

— which would b e below his Guidelines range, I expect I could get approval for that from my supervisor .” Id. The email also said that if Vaugh a n did not plead guilty, the Government would file an “851 Information ,” asking for an enhancement that would increase Vaugh a n’ s mandatory minimum from five to ten years and increase the maximum penalty from 40 years to life imprisonment

. Id. at Page ID 65

– 66. Colley responded by email to the Government attorney that “Vaugh a n intends to go to trial rather than plead and take 15. ” Id. at Page ID 65

. Colley testified that by rejecting the fifteen

- year plea offer, he was following Vaugh a n’s instructions that “if we couldn’t do ten years, let’s just go to trial.” R. 33, Page ID 244

. Vaugh a n testified that Colley did not tell him about the Government’s fifteen

- year plea offer , and Colley did not attest that he told Vaugh a n in March about the fifteen

- year plea offer

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However , b oth Vaugh a n and Colley agree that Colley visited Vaugh a n in jail o n the afternoon of July 25, 2011

. Colle y testified that when he met Vaugh a n, he conveyed the fifteen

- year plea offer to him and wanted to “make sure the 15 wouldn’t work” with Vaugh a n. Id. at Page ID 234 . Colley stated that Vaugh a n told him “he was not going to take 15 years unless he could a ppeal the . . . suppression issue.” Id. Otherwise, according to Colley, Vaugh a n said “he would run the risk of doing 20 or more years rather than agree” to fifteen years of imprisonment and not get to appeal. Id. at Page ID 235; see also id. at Page ID 236

– 37 (additional testimony that Vaugh a n told Colley he would go to trial if the government would not let him preserve his right to appeal the suppression issue). Vaugh a n testified that Colley told him “that if I lost at trial, that I was facing the poss ibility of a 30

- year sentence. And he, you know, asked if we wanted to try to reach a deal then.” Id. at Page ID 179

– 80. Vaugh a n attested , similar to Colley’s testimony, that “[w]hen he [Colley] told me I was facing a possibility of a thirty

- year senten ce if I lost at trial that’s when I offered to plead guilty openly if they would give me the right to appeal the suppression issue.” Id. at Page ID 186. However, unlike Colley’s testimony, Vaugh a n testified that Colley did not mention the fifteen

year pl ea offer during their meeting and so, Vaughan still did not know about it

. On the evening of the same day, July 25, 2011, Colley emailed the Government attorney stating that “Vaugh a n is seriously considering pleading open if the Government will consent to a Rule 11(a)(2) appeal of the Court’s ruling on our suppression motion.” R. 6

- 2, Page ID 67. The Government attorney wrote back that he could not agree to those ter ms, but “ i f you need another day to discuss with Mr. Vaugh a n whether he’d enter an open plea without agreement, please let me know.” Id. Colley responded, “No, we’ll try it. End of discussions.” Id.No. 17

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Vaugh a n and Colley dispute whether Colley told Vaugh a n that the Government had rejected Vaugh a n’s offer for a conditional plea

. Colley testified that he did not have a specific recollection of telling Vaugh a n that his offer had been rejected , but he likely got word to Vaugh a n . Vaugh a n argues that Colley did not tell him the Government had rejected the offer , but Vaugh a n admitted that his brother informed him that the 851 Information had been filed and so Vaugh a n “just assumed that that was the rejection of the offer.” R. 33, Page ID 187

. Vaugh a n also contends that Colley did not tell him that the Government was willing to accept an ope n plea without preserving the right to appeal the suppression issue

. At the hearing, Colley essentially agreed, but testified that he did not tell Vaugh a n about the open - plea offer because Vaugh an “already told me where he was. He told me . . . when I vi sited him . . . [that] if the government was not interested in letting him plead open and preserve his right to appeal the suppression denial that he wanted to go to trial.” Id. at Page ID 248. On July 26, 2011, the day after the last email exchange, the Government filed the 851 enhancement, which shif

ted Vaugh a n’s statutory range from five

- to

- forty years to ten years to life. Two weeks later, Vaugh a n’s case proceeded to trial. Vaugh a n admitted that he knew he could have pled guilty up until the verdict was reached at the trial, but he decided not to do that because he believed he would not get a good plea deal at that stage

. B. Analysis “Courts are not required to conduct an analysis under both prongs of the [ Strickland ] inquiry. ‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficientNo. 17

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prejudice . . . that course should be followed.’” Mallett v. United States , 334 F.3d 491, 497 (6th Cir. 2003) (quoting Strickland , 466 U.S. at 697). Thus , we turn to the issue of prej udice , as the district court did . Because the rejection of a plea offer led to trial, Vaughan must demonstrate the following: but for the ineffective advice of counsel there is a reasonable probability [1] that the plea offer would have been presented to the court (i.e., that [Vaughan] would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [2] that the court would have accepted its terms, and [3] 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.
McGowan v. Burt , 788 F.3d 510, 514 (6th Cir. 2015) (quoting Lafler , 566 U.S. at 164). Here, the crux of the issue is whether Vaugh a n demonstrat ed that there is a reasonable probability that he would have accepted (1) the fifteen

- year term of imprisonment plea offer, or (2) the open

- plea offer. i. The Fifteen

- Y ear P lea O ffer Vaugh a n argues that he would have accepted the fifteen

- year plea offer. During the evidentiary hearing, Vaugh a n was asked, “if you knew in March where the government was, that they were either contemplating a plea of a 15

- year agreement or something in the area of 188 to 235 months, and that had been conveyed to you, what woul d you have done?” R. 33, Page ID 183. Vaugh a n stated that he “would have been interested in that,” because he “knew at that point already that [he] had lost [the] suppression [issue].” Id. at Page ID 184. On the other hand, the Government argues that V augh a n would not have accepted the offer. “Both accounts cannot be true.” Christopher v. United States , 831 F.3d 737, 739 (6th Cir. 2016). We have held that “ [ f ] aced with starkly different views of the facts, either one of which has ample evidence to s upport it, ‘ the factfinder ’ s choice between them cannot be clearly

erroneous. ’ ” Id. (citing Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985 ) ). “ In he

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said, he

- said cases like this one, that means the factfinder does not clearly err in picking one ‘ he ’ over the other so long as there is support for each account. ” Id. That is the case here. The district court found that Vaugh a n would not have accepted the fifteen

- year plea offer because there is evidence that belies Vaugh a n’s contention. In support, the district court pointed out that Vaugh a n’s interest in appealing the denial of his motion to suppress was evidenced by the emails in the record, as well as the testimony from both Vaugh a n and Colley at the evidentiary hearing that the suppression issue was a legitimate consideration in deciding whether to plead guilty or proceed to trial. For instance, during the evidentiary hearing, when pressed about whether he would have taken the fifteen

- year plea offer, Vaugh a n also stated, “Well, he [Colley] had spoken so strongly about the suppression is sue that I still would have asked for the chance to appeal that, but I would have, you know, worked harder to negotiate a plea deal.” R. 23, Page ID 148

. Vaugh a n was not clear that he would have accepted the plea deal that did not preserve his right to a ppeal the suppression issue

. Accordingly, because the fifteen

- year plea deal did not preserve Vaugh a n’s right to appeal, the district court did not clearly err in holding that Vaugh a n has not demonstrated that there is a reasonable probability he would hav e accepted the offer. Additionally , the district court cited Colley ’s testimony that Vaugh a n was focused on spending as little time incarcerated as possible , due to his cooperation with the Government on a case involving other federal detainees , as further evidence that Vaugh a n would not have accepted a term of imprisonment as lengthy as fifteen years. On appeal, Vaugh a n asks us to find that the district court erred in finding Colley credible. It is true that at one point during the evidentiary he aring, when Colley was unable to recall if he had computed Vaugh a n’s sentencing range when Vaugh a n was initially indicted, Colley admittedNo. 17

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that he had not reviewed his case file on Vaugh a n’s matter prior to testifying. But this is not a basis for us to ov erturn the district court’s credibility finding regarding Colley’s testimony about Vaugh a n’s cooperation with the Government . When Colley testified about Vaugh a n’s cooperation, he provided specifics: The Assistant U.S. Attorney was Larry Moon, and Mr. Moon filed a motion after sentencing, which got Mr. Vaugh a n a substantial benefit. And then we

— the rest of his time on that stint in federal prison we had to be careful that he was not housed with this fellow that he testified against or anybody in his ga ng. And with this new est bus t in 2011, there was a lot of concern about we got to do whatever we can to keep him out of the federal system. [And n]ot do any federal time because those people . . . he felt would still be out to harm him. R. 33, Page ID 22 4

– 25. Thus, we do not find that the district court erred in finding credible Colley’s testimony concerning Vaugh a n’s aversion to jail time , particularly because Colley provided specifics regarding Vaughan’s cooperation with the Government in the prior case. Based upon these facts

— (1) the emails and both parties’ testimon y concerning Vaugh a n’s desire to pursue the suppression issue on appeal, and (2) Colley’s testimony that Vaugh a n was seeking to avoid federal time

— the district court did not clearly er r in holding that Vaugh a n has not demonstrated that there is a reasonable probability he would have accepted the fifteen

- year plea offer. ii. The O pen P lea O ffer Similarly, Vaugh a n has not demonstrated that there is a reasonable probability he would have accepted the open

- plea offer. L ike the fifteen

- year plea offer, the open plea offer did not preserve the suppression issue for appeal. Furthermore, during the hearing, when asked why he would have accepted an open plea “even though [he] didn’t know if i t [the sentencing range] was five years or 35 years,” Vaugh a n responded, “Well, he [Colley] told me I was facing a possibility of 30 years if I lost at trial. So itNo. 17

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10 was my understanding if I took an open plea that it would have to have been better than fa cing a 30 at trial.” Id. at Page ID 204

– 05. But Vaugh a n admitted that this was just a guess

—he had no idea what his guidelines range was and thus what he could have been sentenced to if he accepted the open plea offer

. Id. at Page ID 205. Accordingly, acceptance of t he open

- plea offer meant that Vaugh a n could have be en subject to a lengthy jail sentence, which he was trying to avoid. As we noted above, this support s the conclusion that Vaugh a n would not have accepted the open

- plea offer. IV. CONCLUS ION The district court did not err . We therefore AFFIRM the district court ’s denial of Vaugh a n’s § 2255 Motion to Vacate Judgment

.