* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-60014

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DONALD SANDERS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(CRE-91-68-B-D)

_________________________

September 9, 1996

Before WISDOM, SMITH, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Donald Sanders appeals, pro se and in forma pauperis, the

denial of his motion for postconviction relief pursuant to

28 U.S.C. § 2255 (1994). We affirm.

I.
2

Sanders and the government reached a plea agreement during the

second day of his trial for numerous drug offenses. Sanders agreed

to plead guilty to two counts of possession of crack cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a) and

(b)(1)(B) (1994); one count of committing that offense within 1,000

feet of a playground, in violation of § 860(a); and one count of

carrying and using a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (1994).

In exchange, the government agreed to dismiss the remaining nine

counts of Sanders’s indictmentSSwhich charged him with possession

of crack cocaine with intent to distribute, in violation of

§ 841(a) and (b)(1)(C); conspiracy to commit that offense, in

violation of 21 U.S.C. § 846 (1994); possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1994) and

18 U.S.C. § 924 (1994); assault on grand jury witnesses, in

violation of 18 U.S.C. § 1513(a)(1) (1994); and threats against

other grand jury witnesses, in violation of § 1513(a)(1)SSand to

recommend concurrent sentences except as to the § 924(c) charge for

using and carrying a firearm.

The district court held a plea hearing and accepted Sanders’s

plea of guilty after satisfying itself that Sanders made the plea

knowingly and voluntarily. Shortly thereafter, Sanders asked to

withdraw his plea. At his sentencing hearing, he explained that he

had pleaded guilty only because his attorney was ineffective and

had made misrepresentations to him. The district court elicited
3

testimony from both Sanders and his attorney and denied the motion.

On direct appeal, Sanders’s attorney requested to withdraw and

filed an Anders brief asserting that there were no nonfrivolous

issues for appeal. We agreed and dismissed the appeal.

Sanders filed a § 2255 motion contending that he pleaded

guilty involuntarily and received ineffective assistance of trial

and appellate counsel. The district court denied the motion. Sanders appealed, re-arguing the claims presented below and raising

a new oneSSthat his plea to the § 924(c) charge of using and

carrying a firearm lacked a sufficient factual basis.

II.

Sanders argues that his guilty plea was involuntary because

(1) his plea agreement was altered to his detriment after he signed

it, and (2) the government’s agreement to recommend that his

sentences run concurrently was misleading. Sanders’s contention

that his plea agreement was “altered and restructured” is

meritless. He testified under oath at his plea hearing that

(1) the prosecutor had described the plea agreement accurately;

(2) he understood the minimum and maximum sentences applicable to

each count; (3) no one had made any prediction or promise as to the

length of sentence he would receive; and (4) he felt that his

counsel competently represented his best interests. As Sanders has

presented no contradictory evidence, other than his own changed
 

1 See United States v. Bachynsky, 949 F.2d 722, 728 (5th Cir. 1991), cert.

denied, 506 U.S. 850 (1992) (holding that defendant who renounces his own

testimony in an attempt to withdraw his plea bears a “heavy burden”); Harmason

v. Smith, 888 F.2d 1527, 1532 (5th Cir. 1989) (same).

4

testimony, the district court did not err in crediting Sanders’s

earlier statements.1

Sanders contends that the government’s agreement to recommend

concurrent sentences, except as to the § 924(c) offense, was

misleading because the sentencing guidelines deprive district

courts of discretion to determine whether sentences run consecutively or concurrently. Sanders did not present this argument in

his § 2255 motion before the district court. Accordingly, he has

waived his right to raise it on appeal. See, e.g., United States

v. Faubion, 19 F.3d 226, 232 n.31 (5th Cir. 1994).

Even if this argument were properly before us, we would reject

it. While U.S.S.G. § 5G1.2 (1992) restricts the district courts’

discretion regarding whether sentences should run concurrently or

consecutively, it does not eliminate that discretion. A court

still may impose consecutive sentences if (1) the maximum sentence

for any single count is less than the statutory or guidelines

maximum, United States v. Kings, 981 F.2d 790, 798 (5th Cir.),

cert. denied, 508 U.S. 953 (1993); or (2) the court exercises its

discretion to depart from the guidelines, United States v.

Martinez, 950 F.2d 222, 226 (5th Cir. 1991), cert. denied, 504 U.S.

926 (1992). Thus, Sanders’s argument rests upon a misperception of
 

2 The government observes that the district court told Sanders that “the

Court can stack all of these sentences one after the other.” That statement is

potentially misleading, for it overstates the extent of the district court’s

discretion. Sanders does not contend that the court’s admonitions misled him,

however; instead, he complains only of the government’s representations.

5

law.2

A guilty plea is knowing and voluntary only if the defendant

understands the consequences of his plea. United States v. Young,

981 F.2d 180, 184 (5th Cir. 1992), cert. denied, 508 U.S. 955, and

cert. denied, 508 U.S. 980 (1993). “The consequences of a guilty

plea, with respect to sentencing, mean only that the defendant must

know the maximum prison term and fine for the offense charged.”

Ables v. Scott, 73 F.3d 591, 592-93 n.2 (5th Cir.), cert. denied,

116 S. Ct. 1696 (1996) (quoting United States v. Rivera, 898 F.2d

442, 447 (5th Cir. 1990)). At the plea hearing, the district court

informed Sanders of the maximum penalties for each count, and

Sanders stated that no one had made any further prediction or

promise as to the length of sentence he would receive. Thus,

Sanders’s plea was voluntary. See Young, 981 F.2d at 184.

III.

Sanders contends that his plea to the § 924(c) count was

involuntary because it lacked a factual basis in light of the

subsequent decision in Bailey v. United States, 116 S. Ct. 501

(1995). As Sanders did not present this fact-based claim to the

district court, we may not address it.
6

IV.

Sanders contends that his counsel was ineffective on several

different fronts.

To prevail on an ineffective assistance of counsel claim,

[defendant] must show that his counsel’s performance was

deficient and that the deficiency prejudiced his defense.

In the context of a guilty plea, a defendant must show

“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.”

Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995), cert. denied,

116 S. Ct. 957 (1996) (quoting Hill v. Lockhart, 474 U.S. 52, 59

(1985)) (citation omitted).

A.

Sanders contends that his attorney conducted an inadequate

pretrial investigation and failed to pursue various defenses. To

demonstrate prejudice from such alleged lapses, Sanders must show

either (1) that discovery of certain evidence would have changed

his counsel’s prediction regarding the outcome of trial or (2) that

a specific defense “likely would have been successful at trial.”

Id.

Sanders must identify specific evidence that counsel could

have discovered through an adequate investigation. See Anderson v.

Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). His only specific

allegations of inadequate investigation relate to his attorney’s
 

3 But see Samuels, 59 F.3d at 529 (finding that attorney acted reasonably

in deferring to Drug Enforcement Administration report that substance was crack

rather than powder cocaine).

7

failure to contest the admissibility of evidence seized from the

vacant home. 

Sanders’s attorney filed a motion to suppress that evidence

but did not pursue it, because he concluded that Sanders lacked

standing to contest the search. As Sanders has not even attempted

to demonstrate that he possessed a reasonable expectation of

privacy in the vacant home, he has not shown that his attorney’s

failure to investigate the search constituted deficient performance. Cf. United States v. Mendoza-Burciaga, 981 F.2d 192, 196

(5th Cir. 1992), cert. denied, 510 U.S. 936 (1993) (holding that

defendant lacked standing to contest search of house because he

neither owned nor occupied it).

Sanders’s allegations that his attorney failed to pursue other

defenses are conclusionary. As he has not even attempted to

demonstrate that those defenses likely would have been successful,

he has not shown that he is entitled to relief on this ground.

Sanders argues that his attorney’s failure to retain an expert

to check for fingerprints on the seized items and to confirm the

quantity and quality of drugs seized amounted to ineffective

assistance. Assuming, arguendo, that counsel’s performance was

deficient,3 Sanders has failed to show that he suffered prejudice:

He has presented no evidence that the government expert’s reports
8

were incorrect, nor has he even requested an evidentiary hearing.

Thus, Sanders has not carried his burden of proving that failure to

procure expert testimony likely affected his decision to plead

guilty. See Belyeu v. Scott, 67 F.3d 535, 540 (5th Cir. 1995),

cert. denied, 116 S. Ct. 1438 (1996).

B.

Sanders alleges that his attorney testified against him at a

hearing on his motion to withdraw his plea, depriving him of his

rights to effective assistance of counsel and effective crossexamination of the witnesses against him. Sanders filed a motion

to withdraw his plea prior to sentencing. At the beginning of the

sentencing hearing, the district court questioned Sanders and his

attorney regarding the motion and permitted the government to

examine both.

A defense attorney should withdraw from representation as soon

as he realizes that he will be a witness for the prosecution.

Failure to do so is a “conspicuous impropriety.” Uptain v. United

States, 692 F.2d 8, 10 (5th Cir. 1982) (quoting United States v.

Crockett, 506 F.2d 759, 761 (5th Cir.), cert. denied, 423 U.S. 824

(1975)).

In order to prevail on a claim of ineffective assistance of
 

4 See Beets v. Scott, 65 F.3d 1258, 1270 (5th Cir. 1995) (en banc) (stating

that when defendant claims counsel was ineffective because of conflict between

attorney’s duty of loyalty and self-interestSSsuch as the “lawyer’s status as a

witness”SShe must show actual prejudice), cert. denied, 116 S. Ct. 1547 (1996);

Crockett, 506 F.2d at 761 (finding error was harmless).

9

counsel, a defendant must show actual prejudice.4 Ordinarily an

attorney can represent his client adequately on a motion to

withdraw a plea, even though the attorney’s own alleged ineffectiveness forms the basis of the motion. United States v. Henderson, 72 F.3d 463, 465-66 (5th Cir. 1995).

On the facts of this case, we do not believe that the

attorney’s unwise decision to testify against his client caused

prejudice. In seeking to withdraw his plea, a defendant may not

rely solely upon his own allegations when they contradict his prior

sworn testimony. Bachynsky, 949 F.2d at 728; Harmason, 888 F.2d at

1532. As Sanders presented no corroborating evidence, he failed to

carry his burden as a matter of law, regardless of his attorney’s

testimony. Additionally, Sanders has not identified any deficient

actions or omissions of his attorney stemming from his dual

capacity at the plea hearing. Thus, he has not shown prejudice.

Sanders contends further that the district court denied him

the right to effective cross-examination of his attorney. Assuming

that such a violation occurred, we find it to be harmless.

“[D]enial of the opportunity to cross-examine an adverse witness

does not fit within the limited category of constitutional errors

that are deemed prejudicial in every case.” Delaware v. Van
 

5 See United States v. Cooks, 52 F.3d 101, 104 (5th Cir. 1995) (finding

error to be harmless because ample other evidence supported the decision); TexasCapital Contractors v. Abdnor, 933 F.2d 261, 270 (5th Cir. 1990) (same).

 

6 See Anders v. California, 386 U.S. 738, 744 (1967) (holding that

appellate counsel may request to withdraw if he finds appeal to be frivolous, but

must file brief identifying “anything in the record that might arguably support

the appeal”).

10

Arsdall, 475 U.S. 673, 682 (1986). “The correct inquiry is

whether, assuming that the damaging potential of the crossexamination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”

Id. at 684.

As explained above, Sanders failed to carry his burden of

presenting corroborating evidence. Thus, even assuming that

effective cross-examination would have shown that Sanders’s

attorney had a faulty memory and a motive to misrepresent, we find

that any error was harmless.5

In summary, the district court did not commit reversible error

in permitting Sanders’s attorney to testify regarding Sanders’s

motion to withdraw his plea. This is because (1) Sanders stood no

chance of succeeding on the motion even if his attorney did not

testify, and (2) Sanders has demonstrated no specific prejudice

arising from his attorney’s dual capacity as witness and lawyer.

C.

Finally, Sanders contends that his appellate counsel was

ineffective because he filed an Anders brief.6 Sanders’s attorney
11

filed an adequate Anders brief explaining that there were no

nonfrivolous issues on appeal, and continued to represent Sanders

until we determined that the appeal was meritless. Moreover,

Sanders has not identified any nonfrivolous issues that his

attorney could have pursued on direct appeal. Thus, “[t]he

mandatory requirements of Anders were complied with in this case,

and [defendant] was not denied the assistance of effective

appellate counsel.” Moss v. Collins, 963 F.2d 44, 48 (5th Cir.

1992), cert. denied, 506 U.S. 1055 (1993).

AFFIRMED.