### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-10786

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. WILLIAM BRENT, Defendant - Appellant

Appeal from the United States District Court f or the Northern District of Texas USDC No. 3:05-CR-120-1

Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM: * William Brent (“Brent”) appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his s entence. Brent claims his counsel r endered constitutionally deficient assistance by advising him to accept one plea d eal o ver another b a s ed, in part, on a miscalculation of the applicable guidelines range under U.S.S.G. § 2K2.1. Because Brent failed t o establish he was prejudiced by his attorney’s purported ineffectiveness, we AFFIRM the district court’s denial of his § 2255 motion. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-10786 Document: 00512176273 Page: 1 Date Filed: 03/15/2013No. 11-10786 I. Brent was charged with eight counts of drug a nd firear m o f f e n ses; combined, these carried more than a l ife s entence. The government o f f ered Brent two alternative plea offers: (1) plead guilty to two of the firearm offenses, waive h is a p p e l l ate rights, a nd agree to a 2 40-month sentence (“First Plea Offer”); or (2) p lead guilty t o all three of the firearm offenses, retain his a ppellate rights, a nd a c c e p t a sentence imposed by the court after consideration of the Sentencing Guidelines, which could be up to the 3 0- y e ar m axi m u m (“ S e cond Plea Offer”). When these deals were offered, Brent’s federal public defender and the government mistakenly believed that the applicable guid e lines range under U.S.S.G. § 2K2.1 would be 168–210 m onths for the firearm offenses; it was actually 262–327 months. 1 Brent attests he initially intended to accept the First Plea Offer because its sentence was 10 years shorter than the s entence under the S econd Plea Offer. He contends h e only a greed to accept the Second Plea O ffer after his attorney advised him that it was in his best interest to r e tain his a ppellate rights. 2 When the PSR came out with the r ecommended sentencing range of 262–327 months, the p arties realized their mutual m istake and B rent’s atto r n e y a s ked the government to renew the First Plea Offer. The government declined, s t a t i n g that if i t had known about the proper cross r eference, it would n ot have made the 20-year offer in the f

irst p lace. Nevertheless, the government agreed that Brent should have the opportunity to withdraw his plea under the Second Plea Offer. Brent initially d ecided not to w ithdraw his plea b ut changed his mind a nd went

1 The p arties had f

orgotten to ap p ly the a p p rop riate cros s ref erence that took into cons id eration Brent’s d rug- traf f ick ing of f ens es .
2 When he accep ted the Second Plea O f f er, Brent s tip ulated that he und ers tood that ( 1) his s entence w ould be up to the court’s d is cre t i o n af ter cons id ering the U nited States Sentencing G uid elines , w hich are advis ory only; ( 2) “no one can p red ict w i t h certainty the outcom e of the Court’s cons id eration of the guid elines in this C as e”; ( 3) he f aced up to 30 years in p ris on; and ( 4) he w ould not be able to w ithd raw his p lea if his s entence w as higher than he exp ected

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to trial. Although t h e d i s t r i ct court offered to appoint new counsel, Brent retained his attorney, stating he was “happy and satisfied with the work” that his federal public defender had done. Brent was convicted b y a jury on one c o u n t of possession with intent to distribute 50 grams or more of a mixture and substance containing cocaine base;

one count of possession of firearms in f urtherance of a drug trafficking c r i m e; and three counts of being a felon in possession of a f i r e a r m. He received a life
p l u s 60-month prison sentence. We affirmed the district court’s judgment , United States v . Brent , 300 F. App’x. 267 (5th Cir. 2008), and the Supreme Court denied his petition for a writ of certiorari, B rent v. United States , 130 S. Ct. 54 (2009). The district court subsequently denied Brent’s § 2255 motion a sserting ineffective assistance of counsel without holding an evide n t i ary hearing. We then granted a COA to determine whether Brent’s counsel rendered ineffective assistance by a dvising Brent to accept the Second Plea Agreement rather than the First. II. We review the district court’s factual findings underlying the denial of a § 2255 motion for clear error and its conclusions of law de novo

. United States

v . Ca v i t t , 550 F .3d 4 30, 435 (5th Cir. 2008). T o succeed on an ineffectiv e assistance of counsel (“IAC”) claim, a petitioner must show that ( 1) his c ounsel’s representation f

e l l below an objective standard of reasonableness; and ( 2) he was prejudiced b y the deficient performance. Strickland v. Washing t o n , 466 U.S. 668, 687–88, 104 S. Ct. 2 052, 2064 (1984). Prejudice from IAC where a plea offer has been rejected requires a showing that, but for the c o unsel’s defi cient performance, there is a reasonable p r obability that (1) “the defendant would have a c cepted the plea”; ( 2) “the prosecution would not have withdrawn [the plea] in light o f intervening c ircumstances”; (3) “the court would have accepted its terms”; and ( 4) “the offer’s terms w ould h ave been less severe than under the

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judgment and sentence that in fact were i m posed.” Lafler v. Cooper , 132 S. Ct. 1376, 1385 (2012). Brent argues that his attorney w as ineffective for advising him to accept the Second Plea O ffer rather than the First Plea O ffer. Although Brent asserts that he would h ave accepted the First Plea Offer, and i ts 20-year sentence would have been shorter than the life plus 60-month sentence he received after going through trial, his argument comes up short under the second and third prongs of Lafler’s prejudice test. First, B rent’s conclusory allegation tha t “ i t goes without saying” that he would have received the 2 0

- y e ar s entence under the First Plea Offer but for his attorney’s advice to accept the Second Plea Offer is insufficient to establish prejudice. Koch v. Puckett , 907 F.2d 5 24, 5 30 (5th Cir. 1990). Further, the gover n m e n t ’ s r e fusal to renew the First Plea Offer upon recognizing Brent’s actual advisory guidelines exposure i n d icates that it probably would have withdrawn that offer before it could have been a ccepted by the district c ourt. C

f

. U n ited States v. Papeleo , 853 F.2d 1 6, 20 (1st Cir. 1988) (holding that b ecause a plea offer by the government is for a unilateral contract, the government m ay withdraw it until the defendant’s guilty p lea is a ccepted by the c ourt). Brent offers no evidence to th e contrary. H e similarly fails to provide any reason why the district court would have been justified to accept the First Plea O ffer’s sentence that was 22 months below the minimum of the guideline range. See U.S.S.G. § 6B1.2(c)(2) (noting th at a court must have justifiable

reasons to accept a plea agreement under Rule 11(c)(1)(C) if the sentence is outside the guideline range). Finally, it is particularly unlikely that the district court would have accepted the First Plea O ffer. The judge emphasized that the violent nature o f Brent’s crimes combined w ith Brent’s c riminal history—including a ttempted murder, s everal gun charges, a ggravated assault with a deadly weapon, e v a d i n g a rrest, a nd drug possession—meant “a life sentence is appropriate i n this case.” We therefore conclude that Brent has not established he suffered prejudice as a result of h is attorney’s advice t o a ccept the
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Second Plea Offer. Accordingly, Brent’s IAC claim f ails as a matter of law and it is unnecessary f

or u s t o a d dress whether his attorney’s performance was deficient

. U

n i t e d S tates v. Stewart , 207 F.3d 750, 751 (5th Cir. 2000). The district court’s denial of Brent’s § 2255 motion is AFFIRMED.

5 Case: 11-10786 Document: 00512176273 Page: 5 Date Filed: 03/15/2013